DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2421-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USMC, XXX-XX Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (e)USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (f) SECNAVINST 1850.4 series Encl: (1) DD Form 149 (NR20200002421) (2) Physician Advisor, BCNR, Advisory Opinion of 22 Mar 21 1. Pursuant to the provisions of reference (a), and in accordance with enclosure (1), the Board for Correction of Naval Records (BCNR or Board) considered Petitioner’s request for correction to her military record. The Board’s consideration also included a review of Petitioner’s available service records and relevant Advisory Opinion (AO), enclosure (2). Petitioner, a former enlisted member of the Marine Corps, requests that BCNR upgrade her other than honorable (OTH) discharge. Petitioner asserts that during her military service, she suffered from the mental health condition of Bulimia Nervosa that should have resulted in a medical discharge and mitigated her in-service misconduct. The Board reviewed Petitioner’s assertions and applied liberal consideration in accordance with the current guidance regarding discharge reviews which raise issues of mental health conditions. Ref. (b) - (d). The Board also reviewed Petitioner’s request in light of the Department of Defense’s most recent equity, injustice, and clemency guidance. Ref. (e). The Board further considered Petitioner’s request under the Department of the Navy’s Disability Evaluation Manual. Ref. (f). 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 2 July 2021, 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 enclosure (1), relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, and the applicable Advisory Opinion, enclosure (2). 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 interest of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 16 March 1992. d. On 20 March 1992, Petitioner’s Chronological Record of Medical Care reflects that Petitioner was placed on Weight Control. In her application to the Board, Petitioner states that after she completed boot camp, she was assigned to for Computer Sciences School where her roommate introduced her to vomiting after eating. e. Petitioner states that she continued to binge and purge throughout 1992. She states that she sought counsel from a military Chaplain in January 1993, who then reported her condition to a military doctor. Petitioner was diagnosed with Bulimia Nervosa. f. On 13 September 1993, a Physical Evaluation Board (PEB) found Petitioner unfit for duty on the basis of Bulimia Nervosa, a condition which the PEB determined Existed Prior to Entry, was not aggravated and not ratable. The PEB also determined that Petitioner suffered from migraine headaches, a non-ratable condition that did not contribute to the unfitting condition. g. On 13 October 1993, Petitioner signed the Election of Options of Preliminary/ Reconsidered Findings in which she acknowledged that she had been informed that the PEB’s finding in her case was “Separation without Benefits,” and that she had been counseled as to her alternatives. Petitioner accepted the preliminary/reconsidered findings. The address of Petitioner’s Commanding Officer at was reflected on her signed Election of Options of Preliminary/Reconsidered Findings. The Election of Options of Preliminary/Reconsidered Findings stated that Petitioner was to be separated from the naval service without entitlement to any benefits prescribed by 10 U.S.C. Chapter 61. h. On 1 November 1993, Petitioner received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) from 0700 to 1330 on 22 October 1993, and for wrongful use of amphetamine/methamphetamine. i. On 4 November 1993, Petitioner’s mother wrote to her Congressman, House Representative , in which Petitioner’s mother informed the Congressman that her daughter sought medical care for bulimia while she was in the Marine Corps and that her daughter was to be discharged but had not been given a definitive date. Petitioner’s mother expressed concern about her daughter’s health and about how her daughter’s future might be affected by her discharge. j. On 17 November 1993, Petitioner was notified of administrative separation proceedings on the basis of misconduct (drug dependency). The same day, Petitioner acknowledged her rights and waived her right to appear before an administrative separation board. k. Commanding Officer, recommended that Petitioner be administratively discharged due to drug dependency. The Staff Judge Advocate (SJA) reviewed the proceedings and found them sufficient in law and fact. Petitioner’s administrative discharge proceedings were endorsed by Commanding General, on 7 December 1993. l. On 10 December 1993, Petitioner was discharged on the basis of misconduct (drug abuse), and received an other than honorable discharge and re-entry (RE) code of RE-4. m. Petitioner requests that her discharge be changed to reflect an upgrade from an other than honorable characterization of service to an honorable characterization, and that she receive a medical discharge (disability discharge/retirement). She contends that her discharge reflects error in fact, law and procedure and that her rights were prejudiced during the administrative separation process. She has undergone years of medical treatment and counseling since her discharge, and asserts that relief is warranted on the basis of her service record and other evidence presented to include post-discharge achievements and contributions. Petitioner’s request notes she was found unfit by the PEB, and claims that although she waived her right to appear before an administrative separation board she requested that she be represented by counsel, be able to call witnesses, and make submissions. She also claims that there is no indication that the Separation Authority was made aware of the PEB findings when considering a discharge on the basis of misconduct. Petitioner provides detailed in-service medical records. n. As part of the review process, a Physician Advisor reviewed Petitioner’s available records and issued an Advisory Opinion that concluded that there is sufficient objective evidence that Petitioner developed a mental health condition during her military service and that her misconduct may be mitigated by her mental health condition. o. The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors, including Petitioner’s in-service diagnosis of Bulimia Nervosa and the PEB’s determination of unfitness and recommendation that Petitioner be separated with a not ratable condition. The Board also reviewed Petitioner’s claims of error and injustice in the processing of her administrative separation on the basis of misconduct rather than a medical/disability discharge or separation. CONCLUSION With respect to Petitioner’s request for a medical discharge/retirement, the Board noted that SECNAVINST 1850.4 series states that processing for administrative discharge on the basis of misconduct takes precedence over processing for disability. Even in consideration of the claims raised by Petitioner in her application, taking into account the PEB’s finding of unfitness, noting Petitioner’s mother’s concerns which were voiced to Petitioner’s chain of command as early as November 1993, and acknowledging Petitioner’s in-service medical treatment and diagnostic records, the Board found that Petitioner’s wrongful use of a controlled substance after the PEB’s recommendation merited processing on the basis of misconduct rather than on the basis of a medical condition or disability. Accordingly, the Board found that a medical discharge/ retirement separation was not warranted, and that her administrative discharge processing was without error. The Board noted Petitioner’s claims of procedural error to include that although she waived a right to appear before an administrative separation board, she requested to be represented by appointed military counsel, submit matters to the board, call witnesses, question witnesses and present arguments. The Board noted that paragraph 5 of Petitioner’s 17 November 1993 Acknowledgement of her Rights does reflect Petitioner’s initials in front of various enumerated rights such as representation by appointed military counsel, to testify on her own behalf, and to question witnesses. The Board further noted that the rights enumerated in paragraph 5 were contingent upon Petitioner’s request for a hearing before an Administrative Discharge Board. Since Petitioner waived her right to appear to request a hearing before an Administrative Discharge Board in paragraph 4b of the 17 November 1993 Acknowledgement, the Board found that Petitioner was properly discharged under notice rather than board procedures. The Board further relied on the SJA’s review of Petitioner’s administrative discharge records, and the SJA’s finding that the proceedings were sufficient in law and fact. The Board concluded that Petitioner’s administrative discharge on the basis of misconduct was exercised without error. The Board also considered Petitioner’s assertion that the records do not show that the Separation Authority was made aware of the PEB’s findings when considering Petitioner’s discharge for misconduct. The Board again noted that under SECNAVINST 1850.4 series, that Petitioner’s administrative discharge on the basis of misconduct took precedence over the medical discharge/separation proceedings. Nonetheless, the Board also considered that Petitioner’s Petitioner’s mother raised concerns about Petitioner’s medical condition through a November 1993 letter to her Congressman and through a correspondence to Petitioner’s chain of command. The Board noted that on 16 December 1993, responded to Petitioner’s mother on behalf of Commanding General, and referenced the PEB’s finding of Petitioner’s unfitness. The 16 December 1993 letter also referenced Petitioner’s use of a controlled substance and noted that the command ensured that Petitioner’s medication would not have caused a positive reading for methamphetamines. The Board found that Petitioner’s chain of command was aware of the PEB’s determination but nonetheless properly processed her for an administrative discharge on the basis of misconduct. With regard to Petitioner’s request for an upgrade to her characterization of service, the Board concurred substantively with the determinations of the Advisory Opinion, found that Petitioner’s application should receive liberal consideration, and concluded that Petitioner’s diagnosis of Bulimia Nervosa mitigates her misconduct of wrongful use of a controlled substance. The Board determined that Petitioner’s medical condition of Bulimia Nervosa contributed to her misconduct and therefore Petitioner is entitled to a change to her characterization of service. The Board determined that although Petitioner’s other than honorable discharge on the basis of misconduct was not erroneous, that Petitioner is entitled to partial relief as a matter of justice. The Board found that Petitioner is entitled to an upgrade to an honorable characterization of service, and that Petitioner’s narrative reason for separation, corresponding separation code, and separation authority should be changed to reflect a discharge based on “Secretarial Authority” rather than a discharge due to misconduct. The Board found that even under liberal consideration and noting the mitigating circumstances surrounding Petitioner’s misconduct, that the wrongful use of a controlled substance supports Petitioner’s receipt of an RE-4. RECOMMENDATION: That Petitioner’s naval record be corrected to show that on 10 December 1993, she was issued an honorable discharge by reason of “Secretarial Authority,” that her SPD code is “JFF,” and her separation authority is “MARCORSEPMAN PAR 6421.” That no further correction should be made. That Petitioner be issued a new DD Form 214. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board 12 March 2020. 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. 7/7/2021 Executive Director