Docket No: 147-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER SA , USN, XXX-XX- 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 Certificate of Release or Discharge from Active Duty (DD Form 214) following his discharge for a personality disorder. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 26 March 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board also considered the advisory opinion (AO) furnished by qualified mental health provider, which was previously provided to Petitioner. Although Petitioner was afforded an opportunity to submit a rebuttal, Petitioner did not do so. 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, it is in the interests of justice to review the application on its merits. c. The Petitioner enlisted in the Navy and began a period of active service on 8 September 1972. On 16 January 1973 Petitioner was disenrolled from Basic Hospital Corps School for academic failure. d. On 21 May 1973 Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA). On 4 December 1974 a Navy Medical Board placed Petitioner on limited duty for three months and directed a reevaluation at the end of such time. e. On 11 December 1973 Petitioner underwent a mental health evaluation. Petitioner was diagnosed with a passive aggressive personality disorder and the Medical Officer recommended an administrative separation. f. On 17 January 1974 Petitioner received NJP for UA lasting seven days. On 15 February 1974 Petitioner received NJP for failing to obey a lawful order. g. On 21 February 1974 the Petitioner’s command initiated administrative separation proceedings by reason of unsuitability on the basis of a diagnosed personality disorder. Petitioner waived his right to make a statement, and on the same day Petitioner submitted a voluntary request to immediately return home awaiting final action on his discharge. On 15 March 1974 Petitioner’s command approved his discharge request and Petitioner was discharged from the Navy for unsuitability with a General (Under Honorable Conditions) (GEN) discharge and assigned an RE-4 reentry code. h. In short, Petitioner contended that was dealing with PTSD following a back injury he suffered on board his ship. The Petitioner argued that instead of a medical discharge he was given a GEN characterization. The Petitioner provided evidence that the VA determined he has a service-connected disability and rated him with an 80% disability rating beginning in January 2012. i. As part of the review process, the Board’s Physician Advisor, who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO on 7 February 2021. The Ph.D. initially observed that although Petitioner provided VA documentation regarding a service-connected evaluation at 80 percent, the document does not specifically describe the disability for which he is receiving compensation. The Ph.D. noted that Petitioner underwent a psychiatric evaluation and was diagnosed with a passive aggressive personality disorder without any indication of a thought disorder or psychosis. The Ph.D. noted that Petitioner’s service records do not contain evidence of a PTSD diagnosis, psychological/behavioral changes indicating PTSD, or exposure to a primary or secondary trauma. The Ph.D. determined that there is no evidence to support a PTSD diagnosis, nor is there any evidence linking his purported PTSD diagnosis to his military service or to his misconduct. The Ph.D. concluded by opining that evidence failed to establish Petitioner was either diagnosed with PTSD, suffered from PTSD on active duty, or that his in-service misconduct was attributable to PTSD or any mental health condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos. Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board determined that it would be an injustice to label one’s discharge as being for unsuitability based on a diagnosed character and behavior disorder. Describing Petitioner’s service in this manner attaches a considerable negative and unnecessary stigma, and fundamental fairness and medical privacy concerns dictate a change. Accordingly, the Board concluded that Petitioner’s discharge should not be labeled as being for a mental health-related condition and that certain remedial administrative changes are warranted to the DD Form 214. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization and believed that Sailors should receive no higher discharge characterization than is due. In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to Petitioner’s record of service, and his contentions about any traumatic or stressful events he experienced and their possible adverse impact on his service. However, the Board concluded that there was no convincing evidence that Petitioner suffered from any type of mental health conditions while on active duty, or that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of his discharge. As a result, the Board concluded that Petitioner’s misconduct was not due to mental health-related symptoms. Moreover, the Board observed that Petitioner did not submit any additional clinical documentation or treatment records to support his mental health claims despite a request from the Board on 22 January 2020 to specifically provide additional documentary material. The Board also determined that the evidence of record did not demonstrate that Petitioner was not mentally responsible for his conduct or that he should otherwise not be held accountable for his actions. Additionally, the Board determined that an honorable discharge was appropriate only if the Sailor’s service was otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Board concluded by opining 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 standards for mental health conditions, and that even though flawless service is not required for an honorable discharge, in this case a GEN discharge characterization was appropriate. Even in light of the Wilkie Memo, 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. The Board also did not find a material error or injustice with the Petitioner’s reentry code. The Board concluded the Petitioner was assigned the correct reentry code based on the totality of his circumstances, and that such reentry code was proper and in compliance with all Navy directives and policy at the time of his discharge. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. 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.