From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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,” of 24 February 2016 (d) USD Memo, “Clarifying Guidance to Military Discharge 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,” of 25 August 2017 (Kurta Memo) (e) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 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 naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 8 January 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of his naval record, an advisory opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies, to include the guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 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 filed in a timely manner, the Board determined that it was in the interests of justice to review the application on its merits. c. Petitioner initially enlisted in the Navy and began a period of active service on 1 August 1977. Petitioner’s pre-enlistment physical and medical history both noted no psychiatric or neurological conditions or symptoms. On 31 July 1981 Petitioner was discharged at the end of his active obligated service with an honorable discharge despite receiving non-judicial punishment (NJP) twice for, inter alia, drug-related offenses during his enlistment. On 27 May 1982 Petitioner reenlisted in the Navy. d. On 22 November 1985 the Petitioner received NJP for the wrongful use of cocaine. On 9 January 1986 the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to the wrongful use of cocaine and for a positive urinalysis during his drug aftercare program. The Petitioner consulted with counsel and waived his rights to request an administrative separation board. In the interim, the Petitioner underwent a medical evaluation and was determined not to be drug dependent. Subsequently, on 24 January 1986 the Petitioner received NJP for unauthorized absence. Ultimately, on 21 February 1986 the Petitioner was discharged from the Navy for misconduct due to drug abuse with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reenlistment code. e. Based on his available service records, Petitioner’s overall conduct trait average assigned on his periodic performance evaluations during his enlistment was 3.04. Navy regulations in place at the time of his discharge required a minimum trait average of 3.0 in conduct (proper military behavior), for a fully honorable characterization of service. f. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) related to his service and experiences in in late 1983. The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. g. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO dated 18 December 2020. The MD initially noted that Petitioner’s in-service records did not contain direct evidence of diagnosed PTSD or psychological/behavioral changes that may have indicated PTSD. However, the MD noted that Petitioner presented post-discharge clinical evidence of PTSD, Major Depression, Generalized Anxiety Disorder, and Polysubstance Abuse, all originating from his traumatic combat experiences during service and worsening over time. The MD concluded by opining that there was sufficient objective evidence that Petitioner incurred PTSD and other mental health conditions as a result of his military service, and that his misconduct may be mitigated by such mental health conditions. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in reaching fair and consistent results in these difficult cases.” The memorandum describes the difficulty veterans face on “upgrading their discharges based on claims of previously unrecognized” Mental Health Conditions. The memorandum further explains that because Mental Health Conditions were not previously recognized as a diagnosis at the time of service for many veterans, and diagnoses were often not made until after service was completed, veterans were constrained in their arguments that Mental Health Conditions should be considered in mitigation for misconduct committed, or were unable to establish a nexus between a Mental Health Condition and the misconduct underlying their discharge. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. Similarly, the intent of the Wilkie Memo (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The Wilkie Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD and PTSD-related symptoms and conditions as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s pattern of misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a general (under honorable conditions) (GEN) discharge and no higher under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of most veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. Finally, in light of the Wilkie Memo, reference (e), the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner only merits a GEN characterization of service and no higher. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the reentry code be changed to “RE-1.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new General (Under Honorable Conditions) 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 entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.