Docket No: 1259-20 Ref: Signature Date Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 16 November 2020. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of the Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and began a period of active duty on 24 February 1969. You successfully completed Recruit Training, and were assigned to USS . By November 1969, you had advanced to STS3. You subsequently submitted a letter to the Chief of Naval Personnel (CNP) asking for a change in rate. In a 4 February 1970 letter, CNP denied your request and stated that the requirements of the Navy took precedence. On 18 March 1970, you volunteered for initial submarine training and acknowledged that you understood that you were considered to be a volunteer for duty in any type of submarine in the Atlantic or Pacific Fleet. In November 1970, you were assigned to the USS . On 1 February 1971, you were advanced to STS2. You were evaluated by Medical; the Medical Record states that you presented as mildly anxious and tense, had no confidence, and could not adjust to the petty harassment of service life. On 23 April 1971, you submitted a request to CNP for an administrative discharge. On 26 April 1971, your Commanding Officer recommended disapproval of your request and stated that you had performed your duties in a satisfactory manner and that you now desire to void a contractual obligation to the Navy. Your record indicates that on 1 May 1971, you had a drop in trait average, with a 1.0 in Leadership. The record indicates that you were being counseled in a rehabilitation effort. On 18 June 1971, CNP elected not to separate you. Medical Records dated 30 September 1971, indicate that you presented with many indicators of chronic anxiety, obsessional doubts, and conflicts about responsibility. On 28 October 1971, your Commanding Officer recommended that you be discharged by reason of unsuitability; the 28 October 1971 reflects a rank of STS3. Your Enlisted Performance Record reflects a 3 January 1972 entry for a Final Overall Trait Average of 2.54 and a rank of STS3. On 10 January 1972, you were discharged from the Navy and received a general characterization of service and a reentry (RE) code of RE-4. In your application for correction, you request a change to your rank/pay grade to reflect an E-5, a change to your type of discharge to a Disability Retirement or Retirement, a change to your narrative reason for separation to Secretarial Authority, an upgrade to your discharge from general to honorable, a change to your type of discharge (block 13b) to DD256, a change to your RE code from RE-4 to RE-1, and pay and other financial documents (compensation) to include military retirement pay based on disability with interest or disability severance pay with interest. You provide a brief in support of your application, with enclosures. You ask that the Board apply liberal consideration as envisioned under the Kurta memorandum. You contend that given your mental health at the time of your service, a medical board (MEB) should have been convened. You assert that an MEB would have found that you did not meet medical retention standards, and would have sent you to a Physical Evaluation Board (PEB). Given your mental health condition in 1972, you contend a PEB would have medically retired you. You cite an absence of misconduct, no Article 15s, no desertion, and no unauthorized absences. You state that in addition to the absence of misconduct, you sought mental health treatment to that you could continue to serve. You contend that your plea for help was mischaracterized as a cowardly attempt to leave the military. You state that after arriving onboard the USS , you received a poor evaluation for the first time, your anxiety heightened, and you felt unprepared for the important task of SONAR watchman. You contend in part that you were unfit because of physical disability, and that your disability was incurred or aggravated while you were entitled to receive base pay, and that it is more likely than not that you were at least 50% disabled at the time you were separated from the Navy. You assert that you should have been sent to the Naval Hospital for a full evaluation, and you claim that the Department of the Navy has a recent history of improperly handling personality disorder discharges, suggesting that the process was even more flawed in the early 1970s. You note that for your first two years of service, you had no issue of adjusting or immaturity. You contend that you did not have a service history of inadequate adjustment, so the administrative discharge under unsuitability is both erroneous and unjust. You state that despite the Navy’s errors, you have done everything right. You raised two sons to be good men, lost one of your sons to cancer, serve as a minister in two churches and as a chaplain in Duke Hospice. You have maintained a clean record, and now, at the age of 71 years, wish to properly resolve the issue of your discharge. Since your separation from the Navy, you have been rated as 50% disabled, effective 31 July 218, due to service-connected major depressive disorder with anxious distress. As part of the review process, the Council of Review Boards (CORB) reviewed your request and issued an Advisory Opinion dated 16 June 2020. The Advisory Opinion considered your assertion that you were unfit for continued naval service due to your mental health condition, and that you should have been medically separated or retired. The Advisory Opinion noted that you cite Department of Defense memorandums, colloquially known as the Hagel, Carson, Kurta, and Wilkie memos, to assert a liberal consideration standard for petitions seeking a change of the narrative reason for discharge as applied to medical retirement or medical discharge. The Advisory Opinion noted that these memorandums provide clarification for cases in which mental health conditions and physical, mental, and emotional trauma are to be considered as mitigating factors to misconduct. The Advisory Opinion distinguished the application of the “liberal consideration” standard set forth in the memorandums from the standard applied to cases in which a service member seeks a change in the narrative reason for discharge to “disability retirement” or “separation due to disability.” The evidentiary standards used in the adjudication of cases within the Disability Evaluation System are set forth in DoDI 1332.18 and are not affected by the issuance of the Hagel, Carson Kurta, and Wilkie memorandums, which were directed solely to the service correction and discharge review boards. The Advisory Opinion no documented in the service and medical records. The Advisory Opinion noted that although diagnostic constructs and nomenclature have evolved over time, you presented with a reluctance to perform in rate and rank in the context of conflict regarding responsibility. The Advisory Opinion determined that your presentation would still be construed as a Condition not a Disability in contemporary practice. Per NAVSO P-1990 Disability Evaluation Manual (1970) Section 0228, the term physical disability includes mental disease, but not such inherent defects as behavior disorders, personality disorders, and primary mental deficiency, although they may make a member unfit for military duty. The Advisory Opinion noted that an Immature Personality Disorder is precluded from interpretation as a disability, and found that your discharge was clinically and procedurally valid. The Advisory Opinion noted that the Board may consider an upgrade to your discharge under the liberal consideration standard. A copy of the Advisory Opinion was submitted to you, and you were given an opportunity to respond. In your rebuttal, you request an additional Advisory Opinion from a doctoral level mental health professional who is independent of the CORB. You also note that despite disagreeing with most of the Advisory Opinion, you concur that your service met the standards of accepted conduct and performance of duty for military personnel, thereby requiring the Board to grant you an honorable discharge. You also request a pre-decision legal review on the assertion that the Advisory Opinion misstates the applicable law and standard of review for the Board, and contend that the Kurta memorandum envisions application of liberal consideration to cases in which a medical retirement or disability discharge is reflected through a change in the narrative reason for separation. You take issue with the Advisory Opinion’s Immature Personality Disorder Diagnosis and cite that , a licensed clinical psychologist, diagnosed you with both Major Depressive Disorder and Generalized Anxiety Disorder. Two separate medical professionals reviewed your records and case consultations, and both concluded that you were suffering from what is now known as Generalized Anxiety Disorder. You also cite the VA rating as persuasive evidence that the condition existed or the experience occurred during the Service. You assert that even if the Board does not grant you a disability retirement or separation, your discharge must be upgraded to fully honorably because you met the standards of accepted conduct and performance of duty for military personnel. You also assert that to remove the “entire stain of the misdiagnosis” of Immature Personality Disorder, your narrative reason for separation should be changed to “Secretarial Authority,” your rank should be restored to E-5, and your RE-4 should be change to RE-1. With respect to your request for a medical retirement or disability separation, the Board concurred substantially with the findings of the Advisory Opinion. The Board noted that you were performing your military duties in a satisfactory manner through 23 April 1971, the date of your Commanding Officer’s letter recommending disapproval of your request for an administrative discharge. By May 1971, your command indicated that you were being counseled in an effort to rehabilitate. Nonetheless, you continued to present with mental health concerns and were diagnosed with Immature Personality Disorder prior to your discharge. The Board, like the Advisory Opinion, concluded that the your diagnosis of Immature Personality Disorder precluded you from qualifying for a medical retirement or disability discharge because the Immature Personality Disorder (contemporarily known as Condition not a Disability) did not qualify as a physical disability. Accordingly, the Board determined you are not entitled to a change to your record to reflect a medical retirement or disability discharge, nor are you entitled to any military retirement pay based on disability or disability severance pay. With respect to your request for a change to your narrative reason for separation, an upgrade to honorable, reinstatement of rank to E-5, a change to the type of certificate issued, and a change to your RE-4, the Board considered that you raised the issue of an in-service mental health condition. Accordingly, the Board reviewed your request fully and carefully in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014, and the “Clarifying Guidance to Military Discharge Review Board 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” memorandum of 25 August 2017. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. The Board noted that you hold a general characterization of service, which is not an adverse discharge characterization, and that your record does not reflect any misconduct. The Board found that your general discharge was supported by the nature of your service as reflected by your performance from January 1970 until your separation in January 1972. The Board considered that that your performance traits dropped to 1.0 in Leadership and Supervisory Ability in May 1971, and your command noted that you disliked authority and were unwilling to be held accountable for your actions. You were counseled in an effort to be rehabilitated but were nonetheless discharged prior to completion of your enlistment contract. Even taking into account your in-service medical records and your post-discharge diagnoses, and noting the application of liberal consideration to certain types of discharges, the Board concluded that your discharge was issued without error or injustice and is supported by the evidence in your service record. The Board concluded that your current DD Form 214 reflects the proper rank, type of discharge, narrative reason for separation, characterization of service, type of certificate issued, and reentry code. Furthermore, the Board determined that no pay or financial compensation is appropriate. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely,