Docket No: 3624-20
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) 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  
           (2) BCNR Decision Document, ltr JMP Docket No: 3212-16, dtd 24 Jun 16 
           (3) BCNR, Advisory Opinion of 29 Jul 20 
           (4) Response to Advisory Opinion, Memorandum for the Board for Correction of Naval  
                Records, dtd 17 Sep 20 
            
1.  Pursuant to the provisions of reference (a), and in accordance with enclosure (1), Petitioner applied to the Board and requested correction to his military record for a change to his discharge to reflect a medical disability retirement or alternatively a medical separation, an upgrade to his discharge from a general characterization of service to an honorable discharge, a change to his separation code and a change to his reentry (RE) code. Petitioner previously petitioned the Board for correction to his record and asserted that he should have been discharged due to hypothyroidism.  In his previous application, Petitioner requested an upgrade and a change to his narrative reason for discharge; Petitioner’s previous application was denied.  Enclosure (2).  References (b)-(f) apply. 
 
2.  The Board reviewed Petitioner’s allegations of error and injustice on 7 December 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 enclosure (1), relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo) and the Advisory Opinion (AO) dated 29 July 2020.  Enclosure (3). 
  
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 through the Delayed Entry Program in 2007, and began a period of active duty on 24 March 2008.   
 
    d.  On 7 January 2009, Petitioner received nonjudicial punishment (NJP) for insubordinate conduct.  On 26 March 2009, Petitioner was notified of administrative separation proceedings against him on the basis of the convenience to the government (personality disorder). 
 
    e.  On 3 April 2009, Commanding Officer, 3d Battalion, 2d Marine Regiment recommended that Petitioner be notified of administrative separation proceedings against him on the basis of convenience of the government (personality disorder).  The Commanding Officer stated that the basis for the recommendation was the medical evaluation of 15 January 2009, which related that Petitioner was diagnosed with a personality disorder.  The Commanding Officer recommended that Petitioner be discharged on the basis of the confirmed medical condition. 
 
    f.  On 6 May 2009, Petitioner was discharged from the Marine Corps on the basis of Personality Disorder, and received a general discharge and a reentry (RE) code of RE-4. 
 
    g.  Petitioner previously applied to the Board in NR16-3212; his request for corrective action was denied.  Following the previous Board’s denial in NR16-3212, Petitioner states that he sought relief from the Physical Disability Board of Review but was denied because his discharge was administrative in nature.   
 
    h.  Accordingly, Petitioner applied for reconsideration in his current request to the Board.  Petitioner asks that he be medically retired as of the date of his discharge, or alternatively, that his discharge be changed to a medical separation.  Petitioner also asks that his Certificate of Release or Discharge from Active Duty (DD Form 214) be changed to reflect an honorable discharge with appropriate changes to his separation code and RE code.  Finally, Petitioner seeks all benefits associated with a change in his separation and service characterization as directed by the Board. 
   
    i.  In his application for correction, Petitioner contends that he should have either been medically separated or medically discharged because at the time of his military service, he was suffering from side effect of hypothyroidism and the diagnosis of personality disorder mischaracterized his condition.  Petitioner states that during the course of his active service, he was diagnosed with and received treatment for hypothyroidism.  He asserts that at the time of his alleged misconduct, he was being treated for hypothyroidism.  He also states that after his separation, he filed a disability claim with the Department of Veterans Affairs  and was initiated rated as 60% disabled due to hypothyroidism; he ultimately received a 100% disability rating due to his condition.  Petitioner also contends that his hypothyroidism was disregarded as a potential cause for his behavior by a regular physician rather than a specialist and was therefore not assessed in the determination of whether Petitioner was fit to continue service in the Marine Corps. 
 
    j.  Petitioner provides in part emergency room records dated 30 October 2008, which reflect a diagnoses of hypothyroidism.  Petitioner asserts that the 30 October 2008 emergency room visit was the result of Petitioner’s roommate claiming that Petitioner was making suicidal threats, a behavior that could be attributed to myxedema madness.  Petitioner also reported general weakness, constipation, and confusion during the visit, which he notes in his application are symptoms of hypothyroidism.  On 7 November 2008, Petitioner returned to Medical for a follow up appointment and reported weakness, muscle cramps, nightmares, and being easily aggravates, all of which are consistent with the diagnosis of hypothyroidism and myxedema madness.  Petitioner was prescribed synthetic thyroid hormone treatment and referred to an off-base psychologist to address symptoms of depression associated with his hypothyroidism.  In December 2009. The civilian psychologist contacted the military medical provider to discuss Petitioner’s depression on top of underlying thyroid issues.  Petitioner was then treated by the Division Psychiatry department.  Petitioner points out that the clinic notes contain a misstatement regarding a family history of mental health disease.  On 15 January 2009, Division Psychiatry changed Petitioner’s diagnosis to personality disorder while still mentioning hypothyroidism and noting that he continues to suffer from depression.  Administrative discharge proceedings were then initiated on the basis of the diagnosis of personality disorder.  Petitioner contends that his hypothyroidism manifested after he entered active service and a mental health provider and Command Surgeon mischaracterized his symptoms as being indicative of a personality disorder.   
 
    k.  Petitioner asserts that he suffered from two distinct medical issues at the time of his separation: hypothyroidism and depression.  Petitioner contends that the personality disorder diagnosis was based on inaccurate information being added to his medical record without his knowledge.  Petitioner also asserts in part that his NJP for disrespect did not account for the fact that Petitioner was unconscious only moments before he was being addressed by his lieutenant and he felt unstable at parade rest.  Petitioner asserts that his failure to stand at parade rest and maintain eye contact while being addressed were side effects of hypothyroidism. 
 
    l.  As part of the review process, the Council of Review Boards (CORB) issued an Advisory Opinion dated 29 July 2020.  The Advisory Opinion considered whether Petitioner should be placed on the disability retirement list due to unfitness for continued service at the time of his discharge.  The Advisory Opinion determined that the evidence does not support Petitioner’s request.  The Advisory Opinion reviewed in part the available in-service medical records and took into consideration that Petitioner took issue with the factual information reflected in his medical notes particularly with regard to his family history and childhood history.   
 
    m.  The Advisory Opinion also evaluated the contention that the January 2009 diagnosis of personality disorder by  was erroneous.  The Advisory Opinion noted that   is a “psychiatrist, a physician specializing the in the field of mental disorders, not a psychologist. Hence, he is a competent medical authority in evaluating the contribution of medical disorders on psychiatric functioning.  The record shows that hypothyroidism was given due consideration by Division Psychiatrist  given its entry on Axis III of the multiaxial formulation. Had  concluded that the applicant’s condition (1) met criteria for a major depressive episode and (2) was secondary to hypothyroidism, a Depressive Disorder Due to a General Medical Condition would have been diagnosed. In this case, it was not.”  
 
    n.  The Advisory Opinion also weighed the diagnosis of hypothyroidism and noted that aside from periods of light duty from October to mid-December 2008, Petitioner did not have other duty restrictions due to hyperthyroidism.  The Advisory Opinion considered that SECNAVINST 1850.4 states that the standard for unfitness is based on when a member is unable, because of disease or injury, to perform the duties of his office, grade, rank or rating in such a manner as to reasonably fulfill the purpose of his employment on active duty, and noted that the mere presence of a diagnosis is not synonymous with a disability.  The Advisory Opinion also took into account Petitioner’s assigned VA rating for hypothyroidism.  The Advisory Opinion concluded that although the rating establishes that Petitioner’s condition was incurred during his military service, the rating does not establish unfitness for continued service.  The Advisory Opinion determined that the evidence does not support Petitioner’s request for placement on the disability retirement list.   
 
    o.  The Advisory Opinion was provided to Petitioner, and he submitted a rebuttal dated 17 September 2020, in which he requested that the Board disregard the Advisory Opinion in full.  The rebuttal contended that the Advisory Opinion failed to address several key points, specifically (1) inaccurate information in Petitioner’s medical record, (2) a change in the diagnosis by CDR Bradford, (3) additional inaccurate medical records that were entered into Petitioner’s records and thereby negate the presumption of regularity, and (4) the lack of evidence supporting the decision that Petitioner’s conduct stemmed from a personality disorder as opposed to depression.  The rebuttal takes issue in part with the Advisory Opinion’s discussion of the VA rating and states that Petitioner’s hypothyroidism and is secondary conditions of respiratory issues and depression made him unfit to perform the duties of his office, grade, and rank.  The rebuttal again asserts that the VA rating corroborates the severity of Petitioner’s condition, and contends that he should have been referred to a Medical Evaluation Board for these conditions. 
 
CONCLUSION 
 
The Board weighed Petitioner’s contentions regarding his entitlement to medical separation or retirement and took into consideration the conclusions of Petitioner’s Advisory Opinion and Petitioner’s rebuttal.  The Board noted that in-service records indicate that Petitioner was being treated for hypothyroidism and depression, but found that the existence of these conditions does not appear to have rendered him unfit for performance of his duties as outlined in SECNAVINST 1850.4.  Even taking into account Petitioner’s argument that the VA rating post-discharge establishes the severity of his hypothyroidism and that the hypothyroidism, its secondary conditions and depression impacted his fitness for duty, the Board concurred with the analysis of the Advisory Opinion and determined that Petitioner did not have a qualifying condition that rendered him unable to reasonably fulfill his duties.  Accordingly, the Board found that he was not entitled to processing for a medical separation or retirement under SECNAVINST 1850.4, and that his administrative separation on the basis of the convenience of the government (personality disorder) was appropriate. 
 
With regard to an upgrade to his characterization of service, the Board noted that Petitioner raises the issue of a mental health condition which impacted his performance of his duties.  Accordingly, Petitioner’s application was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the “Clarifying Guidance to Military Discharge Review Board 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” memorandum of 25 August 2017.  The Board noted that Petitioner was not discharged on the basis of misconduct, and that he received a general characterization of service, which is not an adverse discharge.  The Board reviewed the administrative separation proceedings and again found that the general discharge was properly assigned due to administrative processing on the basis of an in-service diagnosis of personality disorder.  The Board, similar to the Advisory Opinion, noted that CDR Bradford was a qualified Medical Corps officer who was aware of Petitioner’s earlier diagnoses of hypothyroidism and depression, but nonetheless also diagnosed him with Personality Disorder.   
 
The Board noted that the 15 January 2009 medical notes indicate that Petitioner was cooperative, mildly depressed, with a strong desire for separation from the Marine Corps and active plans for the future.  The Board concluded that Petitioner was properly evaluated for and diagnosed with Personality Disorder, and that his subsequent administrative discharge proceedings were executed without error or injustice.  
 
The Board also reviewed the petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018.  The Board determined that Petitioner did not provide sufficient evidence or information to establish that he is entitled to corrective action as a matter of clemency. 
 
The Board found, however, that as a matter of justice, Petitioner’s discharge documents should be changed to remove a reference to a Personality Disorder and that any associated reference to his diagnosed condition should be changed on his Certificate of Release or Discharge from Active Duty (DD Form 214).  The Board concluded that Petitioner’s DD Form 214 should  reflect a discharge on the basis of Secretarial Authority, and that his narrative reason for separation be changed to reflect “Secretarial Authority,” with a change to the corresponding separation authority and the corresponding separation code. 
 
RECOMMENDATION: 
 
That Petitioner’s record be changed to show that he was discharged from the Marine Corps on 6 May 2009, with a general characterization of service, on the basis of “Secretarial Authority”  with a separation authority of MARCORSEPMAN PAR 6421 and with a separation code of JFF, and that no further corrective action should be taken.  
 
That 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.