DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2014-20 Ref: Signature Date 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) 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,” of 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,” of 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) DD Form 214 (3) NAVPERS 1070/607, Court Memorandum, 14 Feb 90 (4) NAVPERS 1070/607, Court Memorandum, 17 Jan 91 (5) NAVPERS 1070/607, Court Memorandum, 3 Feb 91 (6) CAAC Director Memo, subj: Termination from CAC Level II Program ICO [Petitioner], 3 May 93 (7) USS Memo, subj: Notice of an Administrative Board Procedure Proposed Action, 12 Jul 93 (8) Petitioner Memo, subj: Statement of Awareness and Request for, or Waiver of, Privileges, 12 Jul 93 (9) USS Msg, subj: [Petitioner]: Recommendation for Administrative Separation by Reason of Misconduct due to a Pattern/of Misconduct; Misconduct due to a Commission of Serious Offense and convenience of the Government due to Alcohol Abuse Rehabilitation Failure (PERS 8322), dtg 200008Z Jul 93 (10) BUPERS Msg, subj: Admin Discharge Authorization PERS 832, 281828Z Jul 93 (11) BCNR Advisory Opinion, 10 Mar 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 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 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 of 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 regulation within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest 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 17 April 1989. See enclosure (2) d. On 26 September 1991, Petitioner received nonjudicial punishment (NJP) for wearing an unsatisfactory uniform in violation of Article 92, Uniform Code of Military Justice (UCMJ). See enclosure (3) e. On 15 January 1991, Petitioner received his second NJP for dereliction of duty by sleeping on watch in violation of Article 92, UCMJ. See enclosure (4) f. On 30 January 1991, Petitioner received his third NJP for missing 14 restricted men’s musters from 15 January 1991 to 27 January 1991. See enclosure (5) g. On 3 May 1993, Petitioner was removed from the Counseling and Assistance Center Level II rehabilitation program due to two incidents of unauthorized absence. See enclosure (6) h. By memorandum dated 12 July 1993, Petitioner was notified that he was being considered for an administrative discharge from the naval service by reason of misconduct due to a pattern of misconduct as evidenced by his three NJPs; for misconduct due to commission of a serious offense as evidenced by his violation of Article 92 by missing restricted men’s muster; and for the convenience of the government due to alcohol abuse rehabilitation failure. See enclosure (7) i. On 12 July 1993, Petitioner elected not to consult with counsel and waived all of his rights, to include his right to request an administrative separation board. He also indicated that he did not object to the proposed separation. See enclosure (8). j. By message dated 20 July 1993, Petitioner’s commander recommended to the separation authority that Petitioner be administratively discharged under other than honorable (OTH) conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. See enclosure (9) k. By message dated 28 July 1993, the separation authority directed that Petitioner be separated from the Navy under OTH conditions for misconduct due to a pattern of misconduct. See enclosure (10) l. On 28 July 1993, Petitioner was discharged from the Navy under OTH conditions by reason of misconduct due to a pattern of misconduct. See enclosure (2). m. Petitioner contends that his discharge was unjust because he was suffering from stress, depression, and sleep deprivation at the time, and that all of his disciplinary issues stemmed from the stress that he was under and the recurring migraine headaches that he incurred when he fell and hit his head while on duty. He further contends that he started drinking after the accident described above to help alleviate the stress, depression, and pain from the migraine headaches that he was suffering. See enclosure (1) n. On 11 November 2019, Petitioner was diagnosed by the Department of Veteran’s Affairs (VA) with migraine headaches secondary to traumatic brain injury (TBI) in 1992. See enclosure (11). He was also diagnosed with Major Depressive Disorder and generalized Anxiety Disorder secondary to his TBI. o. 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 the symptoms reflected in Petitioner’s medical record arising within two weeks of his TBI accident. It also noted Petitioner’s maladaptive coping strategies, which included the excessive use of alcohol to self-medicate against his TBI symptoms. The AO concluded that Petitioner’s residual TBI symptoms cannot be considered to mitigate his three NJPs because they occurred prior to his TBI. However, it did find that Petitioner’s TBI condition can be considered mitigating for his alcohol-related misconduct, decreased performance (due to residual TBI symptoms), and misconduct that resulted in his designation as an alcohol rehabilitation failure after May 1992. See enclosure (11) MAJORITY CONCLUSION Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that Petitioner’s application warrants partial relief in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon his TBI condition, the Majority reviewed his application in accordance with the guidance of reference (b). Accordingly, the Board applied liberal consideration to Petitioner’s TBI condition and the effect that it may have had upon Petitioner’s conduct. Consistent with the AO, the Majority did not find that Petitioner’s TBI and its residual symptoms mitigated the misconduct associated with Petitioner’s NJPs since that misconduct occurred prior to his injury, but it did find the TBI condition to mitigate Petitioner’s alcohol-related misconduct that occurred thereafter. As such, the Majority found that Petitioner’s TBI condition substantially mitigated the overall pattern of misconduct for which Petitioner was discharged. In addition to applying liberal consideration to Petitioner’s TBI condition in accordance with reference (b), the Majority also 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 the mitigating effect of Petitioner’s TBI condition upon his pattern of misconduct as discussed above; the physical and mental health conditions that Petitioner has endured as a result of his TBI incurred in the line of duty, to include migraine headaches, major depressive disorder, generalized anxiety disorder, and insomnia; the relatively minor nature of most of Petitioner’s misconduct; 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 determined that relief is warranted in the interests of justice under the totality of the circumstances. The Majority considered whether Petitioner’s characterization of service should be upgraded to fully honorable as he requested, but determined that since the majority of the misconduct for which he was separated occurred prior to his TBI incident that an upgrade to general (under honorable conditions) was more appropriate under the totality of the circumstances. MAJORITY RECOMMENDATION In view of the above, the Majority of the Board recommends that the following corrections be made to 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 action be granted. 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 to warrant relief. The Minority also applied liberal consideration to Petitioner’s TBI condition and the effect that it may have had upon the misconduct for which he was separated in accordance with reference (b). In this regard, the Minority substantially concurred with the AO conclusion that the misconduct associated with Petitioner’s three NJPs was not mitigated by his TBI condition since it occurred prior to his injury. The Minority agreed that the residual symptoms of Petitioner’s TBI condition may have mitigated Petitioner’s subsequent alcohol-related misconduct, but noted that that misconduct was not part of the pattern of misconduct for which Petitioner was separated and that Petitioner was ultimately not separated for his alcohol abuse rehabilitation failure. Accordingly, the Minority found the nexus between Petitioner’s TBI condition and the misconduct for which he was separated to be limited at best. 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). Given that the Minority found Petitioner’s TBI to be less mitigating than did the Majority for the reason discussed above, it determined that relief is not warranted under the totality of the circumstances. The Minority simply found that the potentially mitigating circumstances did not so clearly outweigh the misconduct for which Petitioner was separated to justify any change to Petitioner’s characterization of service. 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. 4/30/2021 X Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Upgrade to General (under honorable conditions)) MINORITY Recommendation Approved (Deny Relief) Petitioner’s Request Approved (Upgrade to Honorable) 6/16/2021X Assistant General Counsel (M&RA) Signed by: