Docket No: 1393-20 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER , USN, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) USD Memo, “Clarifying Guidance to Military Discharge Review 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 (c) 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 with attachments (2) DD Form 214 (3) NAVPERS 1070/613, Administrative Remarks, 18 Aug 92 (4) NAVPERS 1070/607, Court Memorandum, 6 May 93 (5) NAVPERS 1070/613, Administrative Remarks, 21 Jul 93 (6) NAVPERS 1070/607, Court Memorandum, 22 Mar 94 (7) (FFG-23) CO Memo Ser CO/044, subj: Notice of an Administrative Board Procedure Proposed Action, 22 Mar 94 (8) Petitioner’s Memo, subj: Statement of Awareness and Request for, or Waiver of, Privileges, 22 Mar 94 (9) PERS 832 Msg, subj: Admin Discharge Authorization PERS 832, dtg 0518131Z Apr 94 (10) Psychological Evaluation (11) BCNR Memo, subj: Advisory Opinion ICO [Petitioner], 25 Feb 21 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. 2. The Board reviewed Petitioner’s allegations of error or injustice on 24 May 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) and (c). 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error or 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, it is in the interests of justice to review Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty service on 12 August 1991. See enclosure (2). d. On 18 August 1992, Petitioner received nonjudicial punishment (NJP) for provoking speech and gestures in violation of Article 117, Uniform Code of Military Justice (UCMJ), and for assault in violation of Article 128, UCMJ. See enclosure (3). e. On 6 May 1993, Petitioner received a second NJP for drinking alcohol while under the age of 21 in violation of Article 92, UCMJ, and for drunk driving in violation of Article 111, UCMJ. See enclosure (4). f. On 21 July 1993, Petitioner received a third NJP for insubordinate conduct toward a petty officer in violation of Article 92, UCMJ, and for drunk driving in violation of Article 111, UCMJ. See enclosure (5). g. On 20 March 1994, Petitioner received a fourth NJP for provoking speech and gestures in violation of Article 117, UCMJ, and for assault in violation of Article 128, UCMJ. See enclosure (6). h. By memorandum dated 22 March 1994, Petitioner was notified that he was being recommended for administrative separation by reason of misconduct due to a pattern of misconduct and commission of a serious offense, as evidenced by his NJPs. See enclosure (7). i. By memorandum dated 22 March 1994, Petitioner waived his right to counsel and to request a hearing before an administrative discharge board. See enclosure (8). j. By message dated 3 April 1994, the separation authority directed that Petitioner be discharged under other than honorable (OTH) conditions for misconduct due a pattern of misconduct. See enclosure (9). k. On 8 April 1994, Petitioner was discharged from the Navy under OTH conditions for a pattern of misconduct. This pattern is described on Petitioner’s DD Form 214 as a “pattern of discreditable behavior with civil/military authorities.” See enclosure (2). l. On 14 February 2014, Petitioner was diagnosed by a mental health provider with Attention Deficit/Hyperactivity Disorder (ADHD). See enclosure (10). m. Petitioner requests relief based upon his post-service diagnosis with ADHD, which he asserts caused his erratic and unpredictable behavior while in the Navy. He asserts that he was unable to focus and follow commands, rules, and regulations in the military due to his undiagnosed and untreated illness. Petitioner also asserts that he has been a model citizen since his discharge, and provided character references documenting his extensive volunteer community service. See enclosure (1). n. 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 noted that Petitioner’s post-service diagnosis with ADHD did not link his military misconduct to his mental health condition, and it did not indicate when Petitioner’s ADHD condition began/impacted Petitioner’s functioning. It also noted that there was no evidence in Petitioner’s service records of any mental health diagnosis, or of any psychological or behavioral changes which may have indicated a mental health condition. Based on the available evidence, the AO found that the preponderance of available objective evidence failed to establish that Petitioner suffered from a mental health condition at the time of his military service, or that his in-service misconduct could be attributed to a mental health condition. See enclosure (11). This AO was provided to Petitioner for comment prior to the convening of the Board, but the Petitioner failed to respond within the 30 days allotted. MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that partial relief is warranted in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon a mental health condition, the Majority reviewed Petitioner’s application in accordance with the guidance of reference (b). Accordingly, the Majority applied liberal consideration to Petitioner’s claim of ADHD, and the effect that it may have had upon Petitioner’s misconduct. Even applying liberal consideration, however, the Majority found any nexus between Petitioner’s post-service ADHD diagnosis and his in-service misconduct to be tenuous at best. First, there was no evidence suggesting that Petitioner suffered from ADHD symptoms while in the Navy, as his diagnosis is silent with regard to the onset of these symptoms. Even if Petitioner did suffer from ADHD symptoms while in the Navy, however, his post-service ADHD diagnosis (enclosure (10)) found in 2014 that he suffered only “mild” ADHD symptoms. It also stated that “[i]mpulsivity appears to be a significant problem which impacts [Petitioner] at work, although he seems to have developed some coping skills to be organized and sustain attention when required.” This assessment, combined with the nature of some of Petitioner’s misconduct, convinced the Majority that even if Petitioner suffered from ADHD symptoms while in the Navy, they did not excuse or mitigate the misconduct for which he was discharged. Accordingly, the Majority found no error or injustice in Petitioner’s discharge under OTH conditions from the Navy. In addition to applying liberal consideration to Petitioner’s mental health conditions and the effect that it may have had upon his misconduct in accordance with reference (b), the Majority considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Majority considered that Petitioner has been diagnosed with ADHD; that Petitioner has become a productive member of society despite the stigma of his OTH characterization of service; that Petitioner has developed coping mechanisms to remain productive despite the challenges presented by his mental health condition; the evidence of Petitioner’s extensive community service and leadership, as reflected in the character references provided with his application; 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 was convinced that Petitioner has significantly rehabilitated himself from the indiscretions of his youth, and that the mitigating circumstances described above outweigh the misconduct for which he was discharged under OTH conditions. Accordingly, the Majority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions) in the interests of justice. The Majority considered whether Petitioner’s characterization of service should be upgraded to fully honorable, as he requested, but determined that such relief is not appropriate given the nature and frequency of the misconduct for which Petitioner was discharged. 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 his service was characterized as “General (under honorable conditions).” That no further corrective action should be taken. That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Minority of the Board found insufficient evidence of any error or injustice warranting relief. The Minority also applied liberal consideration to Petitioner’s mental health condition and the impact that it may have had upon his misconduct in accordance with reference (b). Even applying liberal consideration, however, the Minority concurred with the Majority finding that any nexus between Petitioner’s post-service ADHD diagnosis and his in-service misconduct was tenuous at best. Accordingly, the Minority found that Petitioner’s ADHD condition did not excuse or mitigate the misconduct for which he was discharged. The Minority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). While the Minority acknowledged Petitioner’s commendable post-service record of community service, it did not believe that the mitigating factors outweighed the nature and frequency of Petitioner’s in-service misconduct. Accordingly, the Minority determined that relief is not warranted given the totality of the circumstances. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrective action be taken on 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. 6/15/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Partial Relief – Upgrade to General (under honorable conditions)) 7/13/2021 Assistant General Counsel (M&RA)