From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) PERS 832 letter 5420 PERS-832 of 24 June 2020 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 Petitioner’s naval record be corrected to place him on the disability retirement list. 2. The Board, consisting of . , reviewed Petitioner’s allegations of error and injustice on 27 August 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 the enclosures, relevant portions of naval records, and applicable statutes, regulations and policies. 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 entered active duty with the Navy in December 2009. He served without incident until he entered the Family Advocacy Program (FAP) in 2016. He was recommended for counselling and parenting education after improperly disciplining his step-daughter. This FAP case was resolved in 2017 but Petitioner was assigned a non-punitive letter of caution by his command for the incident. c. In the meantime, Petitioner receives treatment for back pain and is placed on limited duty in May 2017. Despite being returned to full duty status in November 2017, he continues to experience symptoms that resulted in medical referral to the Physical Evaluation Board in February 2018. In addition to his back condition, Petitioner is also referred for a mental health condition. d. However, Petitioner is involved in another incident in February 2018 where he improperly disciplines his step-daughter. This results in another FAP case and Petitioner’s referral to an administrative separation board for commission of a serious offense and FAP rehabilitation failure. On 30 August 2018, the administrative separation board concluded the evidence supports a finding that Petitioner was a FAP rehabilitation failure but recommended his retention in the Navy. The command chose to further process Petitioner for administrative separation for Best Interests of the Service (BIOTS) which resulted in his discharge on 3 April 2019 under Secretarial Authority. e. While Petitioner was pending BIOTS processing, his disability case proceeded. A non-medical assessment concluded Petitioner was unable to perform his military duties due to his mental and physical conditions. A medical board addendum documented the severity of his back and mental health conditions. Despite the fact Petitioner was not being processed for misconduct, his PEB case was terminated upon his BIOTS discharge. Post-discharge, Petitioner received various disability ratings from the Department of Veterans Affairs for disability conditions that were referred to the PEB. f. In correspondence attached at enclosure (2), the office having cognizance over Petitioner’s argument that he was erroneously discharged determined that the evidence supports relief. The opinion states that Petitioner’s disability processing should have been allowed to continue since he was not being discharged for misconduct. The opinion further recommends Petitioner’s case be referred back to the PEB for adjudication to determine his disability status. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice/error warranting relief. In this regard, the Board concurred with the Advisory Opinion at enclosure (2). Specifically, the Board determined that the preponderance of the evidence supports a finding that Petitioner was erroneously discharged for BIOTS while pending disability processing. SECNAVINST 1850.4E allowed for the suspension of disability processing when a service member is processed for administrative separation for conduct that could result in a punitive discharge or Other than Honorable characterization of service. Petitioner did not meet the criteria for suspension of his disability case since he was being processed for BIOTS, a separation that does not allow for a punitive discharge or Other than Honorable characterization of service. Based on this fact and in the interests of justice, the Board concurred with the advisory opinion that Petitioner’s disability case should be referred back to the PEB for adjudication. However, the Board also concluded that should the PEB find Petitioner fit for active duty, his discharge status should remain unchanged based on his BIOTS separation. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by directing the PEB to reopen Petitioner’s disability case for adjudication. Petitioner will be afforded all the due process rights associated with disability processing. Should the PEB findings in Petitioner’s case result in a finding of unfitness, Petitioner’s discharge status will be changed, effective 3 April 2019, to be consistent with the final PEB findings in his case and Petitioner will be issued a new DD Form 214. Petitioner will not be returned to active duty status pending PEB review of his case. If the PEB finds Petitioner fit for active duty, Petitioner’s discharge status will remained unchanged. 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.