DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2304-20 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, United States Code, Section 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 (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 (e) 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, 22 Aug 80 (4) NAVPERS 1070/613, Administrative Remarks, 26 Sep 80 (5) USS Msg, subj: [Petitioner], Recommendation for Admin Discharge by Reason of Misconduct, dtg 080009Z May 82 (6) NAVPERS 1070/607, Court Memorandum, 28 Dec 81 (7) NAVPERS 1070/613, Administrative Remarks, 14 Jan 82 (8) NAVPERS 1070/613, Administrative Remarks, 28 Jan 82 (9) NAVPERS 1070/613, Administrative Remarks, 28 Jan 82 (10) NAVPERS 1070/613, Administrative Remarks, 25 Mar 82 (11) NAVPERS 1070/613, Administrative Remarks, 22 Apr 82 (12) CHNAVPERS Msg, subj: Misconduct Discharge ICO [Petitioner], dtg 141632Z May 82 (13) Department of Veterans Affairs Initial Post Traumatic Stress Disorder (PTSD) – DSM V, Disability Benefits Questionnaire, 18 Nov 19 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. 2. The Board reviewed Petitioner’s allegations of error or injustice on 12 April 2021 and, pursuant to its regulations, determined that no corrective action should be taken. As discussed below, I disagree with the Board’s conclusion and recommend that corrective action be taken on Petitioner’s naval record. 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) – (e). 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 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 21 May 1982. See enclosure (2). d. On 22 August 1980, Petitioner received nonjudicial punishment (NJP) for two specifications of unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ); failure to obey a lawful order in violation of Article 90, UCMJ; and drunk and disorderly conduct in violation of Article 134, UCMJ. See enclosure (3). e. On 26 September 1980, Petitioner received his second NJP for two specifications of UA in violation of Article 86, UCMJ. See enclosure (4). f. On 23 April 1981, Petitioner was convicted by a special court-martial (SPCM) of assault with a knife with intent to do bodily harm in violation of Article (5), UCMJ. His sentence included 90 days of confinement at hard labor. See enclosure (5). g. On 24 December 1981, Petitioner received his third NJP for violating a general order or regulation in violation of Article 134, UCMJ. See enclosure (6). h. On 14 January 1982, Petitioner received his fourth NJP for disrespectful language in violation of Article 91, UCMJ. See enclosure (7). i. On 28 January 1982, Petitioner received his fifth NJP for failure to go to his appointed place of duty in violation of Article 86, UCMJ; and dereliction of duty in violation of Article 92, UCMJ. See enclosure (8). j. On 28 January 1982, Petitioner was counseled and warned that any further misconduct may result in disciplinary action and/or processing for administrative discharge. See enclosure (9). k. On 25 March 1982, Petitioner received his sixth NJP for two specifications of UA and eight specifications of missing restricted man’s muster, all in violation of Article 86, UCMJ. See enclosure (10). l. On 22 April 1982, Petitioner received his seventh NJP for violating a lawful general order or regulation for possession of marijuana and drug paraphernalia in violation of Article 92, UCMJ. See enclosure (11). m. On 28 April 1982, Petitioner was notified that he was being processed for administrative separation for misconduct due to frequent involvement of a discreditable nature with military authorities. See enclosure (5). n. On 28 April 1982, Petitioner waived his right to consult with counsel and to request an administrative separation board. See enclosure (5). o. By message dated 8 May 1982, Petitioner’s commander recommended to the separation authority that Petitioner be discharged from the Navy under other than honorable (OTH) conditions for misconduct due to frequent involvement with military authorities of a discreditable nature. In making this recommendation, Petitioner’s commander stated that he “has been an administrative burden to the Navy and to this command since his initial entry into military service” and that “[h]e has total lack of respect for Navy rules and regulations and is a bad influence on those around him.” See enclosure (5). p. By message dated 14 May 1982, the separation authority directed that Petitioner be discharged under OTH conditions by reason of misconduct. See enclosure (12). q. On 21 May 1982, Petitioner was discharged from the Navy under OTH conditions for misconduct. See enclosure (2). r. On 5 August 1992, the Naval Discharge Review Board (NDRB) reviewed Petitioner’s discharge and unanimously determined that it should not be changed. In his application to the NDRB, Petitioner acknowledged that his OTH discharge was warranted, but that he did his best and did not know what it took to be successful in the military since he was a product of his surroundings, and that his immaturity and inability to look beyond what he thought was right or wrong limited his ability to be a good Sailor. Petitioner also requested mercy to remove the stigma of his OTH discharge. See enclosure (13). s. On 18 November 2019, Petitioner was diagnosed by a Department of Veterans Affairs (VA) mental health provider with chronic post-traumatic stress disorder (PTSD), schizoaffective disorder, and opioid use disorder (in sustained remission). The traumatic stressor upon which the PTSD diagnosis was based was an alleged assault suffered by Petitioner while he was in the Navy by five fellow Sailors who he contends were trying to kill him and who were directing racial slurs toward him. Petitioner stated that he fought back to defend himself, so he got in trouble for this incident. See enclosure (13). t. Petitioner contends that he turned to alcohol and drugs to self-medicate the symptoms of his undiagnosed PTSD condition while he was in the Navy. In addition to the problems that his PTSD symptoms caused him in the Navy, he contends that they have caused him many problems in his personal and professional life after this discharge. u. 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 found credible Petitioner’s contention that he suffered PTSD as a result of the assault that he experienced on in July 1980. In addition to the assault, the AO also identified ongoing racist incidents and the death of several members of his unit “during operations involving a rescue in Iran” as contributing stressors to his condition. The AO concluded that the preponderance of the evidence established that Petitioner suffered from PTSD during his service and that his misconduct could be attributed to PTSD. See enclosure (14). BOARD CONCLUSION: After careful and conscientious consideration of the entire record, the Board found insufficient evidence to establish the existence of probable material error or injustice. Because Petitioner based his claim for relief in whole or in part upon his PTSD condition, his application was reviewed in accordance with the guidance of references (b) – (d). Accordingly, the Board applied liberal consideration to his claimed PTSD condition and the effect that it may have had upon his conduct. In this regard, the Board acknowledged the AO finding that Petitioner suffered from PTSD during his service in the Navy and that his misconduct may be attributable to that condition. In addition to applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his conduct in accordance with references (b) – (d), the Board also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Board considered, among other factors, Petitioner’s contention that he was the victim of an assault and racially motivated attacks while in the Navy; that Petitioner developed PTSD as a result of the assault and has suffered its effects ever since; that Petitioner self-medicated for the effects of his untreated PTSD, which may have contributed to the misconduct for which he was separated; the adverse effects that Petitioner’s PTSD condition and his self-medicating efforts have had on Petitioner’s life since his discharge; that Petitioner has sought treatment and to rehabilitate himself, as evidenced by the fact that his opioid addiction is in sustained remission; Petitioner’s relative youth at the time of his misconduct; and the passage of time since Petitioner’s discharge. Even considering these mitigating factors, however, the Board determined that relief is not warranted given the totality of the circumstances. Specifically, the Board found that the nature and quantity of Petitioner’s misconduct, as evidenced by his seven NJPs and SPCM conviction for assault with intent to do bodily harm, far outweighed the mitigating circumstances. The Board also noted that Petitioner was provided multiple warnings and opportunities to correct his conduct, but failed to do so. Accordingly, the Board determined that Petitioner’s characterization of service accurately reflects his service, and that relief is not warranted. BOARD RECOMMENDATION: In view of the above, the Board recommends that no corrective action be taken on Petitioner’s naval record. EXECUTIVE DIRECTOR CONCLUSION: Contrary to the conclusion of the Board, I believe that relief is warranted in this case in the interests of justice. I am mindful that Petitioner demonstrated a significant amount of misconduct while he was in the Navy, and that some of that misconduct appears to be significant, but a careful review of the evidence reveals that most of Petitioner’s misconduct was very minor in nature and almost all of it can be explained by his PTSD condition. Petitioner was the victim of what appears to be a racially-motivated assault while assigned in Diego Garcia, and his life has never been the same since this event. The AO provided in this case confirms that this event likely caused Petitioner to develop PTSD, and that he turned to alcohol and drugs to self-medicate for his undiagnosed and otherwise untreated PTSD symptoms. All of Petitioner’s misconduct occurred after this assault, and almost all of it was very minor misconduct that reflects avoidance techniques and/or maladaptive coping mechanisms that are commonly associated with those suffering from PTSD symptoms. Even the assault for which Petitioner was court-martialed can reasonably be attributed to his mental health condition and the racially-charged circumstances in which he found himself. Given these circumstances, the other mitigating circumstances discussed above, and the Board’s mandate to grant liberal consideration to applications based upon PTSD in accordance with references (b) and (d), I believe that the totality of the circumstances warrants an upgrade of Petitioner’s characterization of service to general (under honorable conditions). This modest relief is appropriate in the interests of justice. EXECUTIVE DIRECTOR RECOMMENDATION: In view of the above, I recommend 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 corrections be made to Petitioner’s naval record. That a copy of this record of proceeding 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 4/30/2021 XExecutive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Deny Relief) Executive Director Recommendation Approved (Upgrade to Grant relief (upgrade characterization of service to “general (under honorable conditions)” ) 5/19/2021 XAssistant General Counsel (M&RA)Signed by: