DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8949-19 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USN, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” 3 September 2014 (c) PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI,” 24 February 2016 (d) USD Memo, “Clarifying Guidance to MilitaryDischarge Review Boards and Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” 25 August 2017 (e) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) Petitioner’s Medical Records (3) NAVDRUGLAB San Diego Msg, dtg 182040Z Dec 96 (4) Memo, subj: Notice of an Administrative Board Procedure Proposed Action, of 28 Jan 97 (5) Petitioner Memo, subj: Statement of Awareness and Request for, or Waiver of, Privileges, of 21 Jan 97 (6) Use/Abuse, of 6 Feb 97 (7) DD Form 214 (8) Advisory Opinion (AO) of 7 Dec 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his characterization of service be upgraded to honorable, that the narrative reason for his separation be changed to “convenience of the government,” and that his reenlistment code be changed to RE-1. 2. The Board reviewed Petitioner's allegations of error and injustice on 25 January 2021, and pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not submitted in a timely manner, it is in the interests of justice to consider Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 1 June 1989. See enclosure (7). d. On 7 March 1996, Petitioner suffered second-and third-degree burns over 16 percent of his body when an illumination grenade ignited in his pocket during a training exercise. He underwent surgical procedures and was hospitalized for almost a month due to these injuries. See enclosure (2). e. Petitioner provided a urine sample in early December 1996 that subsequently tested positive for tetrahydrocannabinol. See enclosure (3). f. By memorandum dated 28 January 1997, Petitioner was notified that he was being considered for administrative separation by reason of misconduct due to drug abuse. See enclosure (4). After consulting with counsel, he elected to waive his right to an administrative separation board. See enclosure (5). h. On 12 February 1997, Petitioner was discharged from the U.S. Navy with an OTH characterization of service due to misconduct. He was issued an RE-4 reentry code. See enclosure (7). i. On 17 February 2006, the Department of Veterans Affairs (VA) awarded Petitioner a 30­percent disability rating for service-connected post-traumatic stress disorder (PTSD) arising from the above referenced training accident. TheVA examination reflected “chronic [PTSD],” and noted several recurring PTSD-related symptoms. In addition to the 30-percent disability rating specifically for service-connected PTSD, Petitioner was awarded a 100-percent disability rating by the VA for all of his service-connected conditions. j.Petitioner asserts that he was suffering from undiagnosed and untreated PTSD at the time of his discharge arising from the above referenced training accident. He states that even after recovering physically, he continued to suffer mental affects from the accident, to include nightmares, feelings of isolation, and feeling like he was damaged. These symptoms, he states, lead him to self-medicate with an illegal substance. k. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board’s consideration. The AO found direct evidence of significant trauma and subsequent psychological and behavioral changes consistent with PTSD in Petitioner’s in-service records. It also found that Petitioner’s separation physical examination included complaints of PTSD-related psychological symptoms, as well as documented findings by the examining physician of a clinical history and psychological symptoms consistent with PTSD. Based upon this review, the AO concluded that there is sufficient objective evidence that Petitioner exhibited behaviors associated with PTSD stemming from a traumatic incident during his military service, and that his misconduct may be mitigated by his PTSD condition. See enclosure (8). MAJORITY CONCLUSION: Upon careful and conscientious review of all of the evidence of record, the Majority of the Board concluded that Petitioner’s application warrants partial relief. Based upon Petitioner’s claimed and documented PTSD condition, his application was considered in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his conduct. The Majority also gave special consideration to the service-connected disability rating awarded to Petitioner by the VA for PTSD. In this regard, the Majority substantially concurred with the AO that Petitioner’s misconduct was mitigated by his PTSD condition. In addition to applying liberal consideration to Petitioner’s mental health condition, the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, that Petitioner’s misconduct was mitigated by his PTSD condition; that Petitioner was severely injured both physically and mentally while serving in the Navy and continues to suffer the effects of these injuries today, as evidenced by his 100-percent service-connected disability rating; that Petitioner almost certainly would not have been discharged with an OTH characterization of service under the same conditions today; Petitioner’s otherwise meritorious service record, as reflected by his above-average conduct and efficiency ratings, awards and decorations, and promotions; that Petitioner has apparently been a productive member of society despite the stigma of his OTH characterization of service, as evidenced by his involvement in the community and success as a father; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority of the Board determined that the interests of justice warrant an upgrade of Petitioner’s characterization of service to general (under honorable conditions) under the totality of the circumstances. The Majority also found that Petitioner’s narrative reason for separation, separation authority, and reentry code should be changed according. The Majority carefully considered whether Petitioner’s characterization of service should be upgraded to fully honorable, but ultimately determined that the relief discussed above best serves the interests of justice under the totality of the circumstances. While Petitioner’s misconduct was certainly mitigated by his PTSD condition, the Majority specifically found that it did not excuse his misconduct. Further, while the Majority found that the mitigating circumstances outweighed Petitioner’s misconduct to warrant the relief recommended, those circumstances were not so overwhelming to warrant upgrade to honorable despite Petitioner’s misconduct. The Majority wholeheartedly believed that Petitioner deserved some relief from his OTH characterization of service, but felt that an upgrade to fully honorable was not warranted under the circumstances. MAJORITY RECOMMENDATION In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that he was separated on 12 February 1997 with a “general (under honorable conditions)” characterization of service; that his separation authority was “MILPERSMAN 1910-164”; that the narrative reason for his separation was “Secretarial Authority”; that his separation code was “JFF”; and that his reentry code was “RE-1J.” That no further corrective action be taken. That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: The Minority of the Board concurred with the Majority that Petitioner’s misconduct was mitigated by his in-service PTSD condition, and that relief is warranted under the totality of the circumstances. However, the Minority did not believe that the Majority recommendation went far enough in the interests of justice. Specifically, the Minority found the mitigating circumstances so significant that they overwhelmed the basis for Petitioner’s discharge. Accordingly, the Minorityfound that the Petitioner’s characterization of service should be upgraded to fully honorable in the interests of justice. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that he was separated on 12 February 1997 with an “honorable” characterization of service; that his separation authority was “MILPERSMAN 1910-164”; that the narrative reason for his separation was “Secretarial Authority”; that his separation code was “JFF”; and that his reentry code was “RE-1J.” That Petitioner be issued an honorable discharge certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-titled matter. 5. The foregoing action of the Board is submitted for your review and action. Assistant General Counsel (Manpower and Reserve Affairs) Decision: MINORITY Recommendation Approved (Upgrade to Honorable)