Docket No 2064-20

From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF   
            
 
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   

Encl:   (1) DD Form 149 
        (2) Advisory Opinion of 10 Mar 21 
  
1.  Pursuant to reference (a), Petitioner filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that his other than honorable (OTH) characterization of service be upgraded to general (under honorable conditions).  Enclosures (1) and (2) apply. 
  
2.  The Board, consisting of , and , reviewed Petitioner’s allegations of error and injustice on 17 May 2020, 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 Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Secretary of Defense regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel 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.   
 
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.  Petitioner enlisted in the Navy and began a period of active duty on 28 August 1989, and reenlisted on 2 August 1993.  
 
     c.  On 2 December 1993, Petitioner was charged with unlawfully carrying on a concealed weapon on base.  Specifically, a 40 caliber semi-auto pistol was found stored under the driver’s seat of his car. 
 
     d. On 10 January 1994, Petitioner submitted a request of an other than honorable (OTH) discharge in order to avoid trial by court-martial for possessing a concealed weapon.  Prior to submitting his request for discharge, he conferred with a qualified military lawyer, was advised of his rights, and was warned of the probable adverse consequences of accepting such a discharge.      
 
     e.  On 25 January 1994, Petitioner received a medical evaluation which was required by Navy directives before a servicemember’s request for discharge in lieu of court-martial could be considered.  Petitioner was found fit for separation. 
 
     f.  On 27 January 1994, Petitioner’s request for discharge was granted, and on 31 January 1994, he received an OTH discharge in lieu of trial by court-martial.   
 
     g.  In his application, Petitioner explains that he tried to check his weapon into the armory, but he was single, and in accordance with an instruction, he had to be married.  He further asserts that he was moving off base but had his vehicle searched before being approved, and the weapon was found in his car.  . 
 
     h.  Petitioner also asserts that he has been diagnosed with depression due to his participation in military campaigns, and needs an Honorable or General characterization of service in order to receive benefits.  Based on this assertion, the Board requested and received an AO from the Board’s mental health professional.  The AO concluded that the preponderance of available objective evidence failed to establish that Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or that his in-service misconduct could be mitigated by a mental health condition. 
 
 
 
CONCLUSION: 
 
Upon review and consideration of all the evidence of record, the Board found no nexus between his misconduct and a mental health condition.  However, the Board concluded that the Petitioner’s request warrants favorable action in the form of relief.   
 
In this regard, the Board noted Petitioner’s misconduct, and does not condone his actions.  However, based upon Petitioner’s overall record of satisfactory performance, the Board found his discharge to be harsh and to be an injustice.  The Board concluded that his characterization of service should be changed to “General (under honorable conditions).”  The Board also voted to ensure that Petitioner’s Certificate of Release of Discharge from Active Duty (DD Form 214) reflects that he served honorably from 28 August 1989 until his reenlistment on 2 August 1993. 
 
In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. 
 
RECOMMENDATION: 
 
That Petitioner’s naval record shall be corrected by showing that on 31 January 1994, he received a General (under honorable conditions) discharge.  
 
That Petitioner’s DD Form 214 be updated to reflect that he served honorably from 28 August 1989 until his reenlistment on 2 August 1993. 
 
That Petitioner be issued a new DD Form 214. 
 
No further action be granted. 
 
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 Regulation, 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.     
                                                                           
								 5/27/2021
								  Executive Director