DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 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, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD,” 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 (BCMRs/BCNR) by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI), of 24 February 2016 (d) USD Memo, “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,” 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 with attachments (2) DD Form 214 (3) NAVPERS 1070/607, Court Memorandum, 26 Mar 87 (4) NAVPERS 1070/607, Court Memorandum, 19 Oct 87 (5) NAVPERS 1070/613, Administrative Remarks, 18 Mar 88 (6) USS CO Memo, subj: [Petitioner]; Recommendation for Separation due to a Pattern of Misconduct and Commission of a Serious Military Offense MILPERSMAN Article 3630600, 1 Jun 88 (7) NAVPERS 1070/613, Court Memorandum, 19 May 88 (8) USS Msg, subj: [Petitioner]: Recommendation for Admin Separation by Reason of a Pattern of Misconduct and Commission of a Serious Military Offense, dtg 010417Z Jul 88 (9) USS PMsg, subj: Admin Proceedings ICO [Petitioner], dtg 030026Z Aug 88 (10) COMNAVPERSCOM Msg, subj: Misconduct Disch ICO [Petitioner] NMPC-8322, dtg 191927Z Aug 88 (11) Correctional Managed Health Care Mental Health Outpatient Services Clinical Interview, 17 Sep 20 (12) BCNR Advisory Opinion, 22 Mar 21 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 to honorable. 2. The Board reviewed Petitioner’s allegations of error or injustice on 3 May 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. 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 of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Before applying to this Board, the 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 interests of justice to waive the statute of limitations and review Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty service on 15 August 1986. See enclosure (2). d. On 19 March 1987, Petitioner received non-judicial punishment (NJP) for operating a vehicle while intoxicated in violation of Article 111, Uniform Code of Military Justice (UCMJ). See enclosure (3). e. On 15 October 1987, Petitioner received his second NJP for drunk driving in violation of Article 111, UCMJ. See enclosure (4). f. On 18 March 1988, Petitioner received his third NJP for three specifications of unauthorized absence (UA) in violation of Article 86, UCMJ. See enclosure (5). g. On 28 April 1988, Petitioner received his fourth NJP for making false official statements in violation of Article 107, UCMJ. See enclosure (6). h. On 19 May 1988, Petitioner received his fourth NJP for UA in violation of Article 86, UCMJ. See enclosure (7). i. By memorandum dated 17 June 1988, Petitioner was notified that he was being recommended for an administrative discharge by reason of misconduct due to a pattern of misconduct and commission of a serious offense. See enclosure (8). j. On 18 June 1988, Petitioner waived his right to an administrative discharge board (ADB) after consulting with counsel. See enclosure (8). k. By message dated 1 July 1988, Petitioner’s commander recommended to the separation authority that Petitioner be involuntarily separated under other than honorable (OTH) conditions for misconduct due to a pattern of misconduct and commission of a serious offense. See enclosure (6). l. On 1 July 1988, Petitioner was referred for evaluation by his ship’s medical officer. The medical officer’s report found that Petitioner had successfully completed Level II substance abuse treatment, and that Petitioner had not had any further alcohol related incidents since his treatment. It also found that Petitioner was not dependent upon alcohol, and recommended that Petitioner be discharged. See enclosure (9). m. On 19 August 1988, the separation authority directed that Petitioner be discharged under OTH conditions for misconduct.1 See enclosure (10). 1 Petitioner’s naval records do not include documentation pertaining to his administrative discharge process. In the absence of evidence to the contrary, the presumption of regularity applies to establish that Petitioner was afforded all rights due to him prior to being involuntarily separated under OTH conditions. n. On 29 August 1988, Petitioner was discharged from the Navy under OTH conditions for misconduct due to a pattern of misconduct. See enclosure (2). o. On 17 September 2020, Petitioner was diagnosed with post-traumatic stress disorder (PTSD) by a mental health provider at his correctional facility based upon his experience of witnessing a fellow Sailor die during physical training in the Navy. See enclosure (11) p. Petitioner contends that his discharge should be upgraded to honorable because he developed post-traumatic stress disorder (PTSD) as a result of witnessing a fellow Sailor die during physical fitnesss training during boot camp. He claims that this event caused him to begin abusing alcohol to self-medicate for his PTSD symptoms, which in turn contributed to his misconduct. His alcohol abuse continued after his discharge, resulting in eight more charges of driving while under the influence of alcohol and four incarcerations since his discharge from the Navy. He also claims that the alcohol abuse resulted manic depression and anxiety. Petitioner believes that if he would not have gone down this road had been properly diagnosed with PTSD and received treatment at the time. Petitioner further contends that he was told at the time that he waived his right to an ADB that his discharge would be automatically upgraded to general and then to honorable. q. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board’s consideration. Based upon this review, the AO concluded that there is evidence that Petitioner exhibited behaviors associated with a mental health condition during his military service and that his misconduct may be mitigated by his mental health condition. See enclosure (12). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that partial relief is warranted in the interests of justice. Because he based his claim for relief in whole or in part on his claim of PTSD, the Majority reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct. In this regard, the Majority substantially concurred with the findings of the AO that there is sufficient evidence to conclude that Petitioner developed PTSD while in the Navy, and that at least some of Petitioner’s misconduct may be mitigated by this conditions. In additional applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine if relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, the mitigating effect of Petitioner’s PTSD condition, as discussed above; that Petitioner’s PTSD condition went undiagnosed and therefore continued to adversely affect him after his naval service; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, the Majority determined that Petitioner’s misconduct was outweighed by the mitigating circumstances, so his characterization of service should be upgraded to general (under honorable conditions) in the interests of justice. The Majority considered whether an upgrade of Petitioner’s characterization of service to fully honorable was warranted as he requested, but determined that it was not given the totality of the circumstances. Due to the nature and frequency of the misconduct for which he was discharged, and the fact that the Majority could find no nexus between Petitioner’s PTSD condition that his violation of Article 107, UCMJ, the Majority found that the mitigating circumstances did not so significantly outweigh the misconduct to warrant the relief requested. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions).” That no further changes be made to Petitioner’s naval record. That a copy of this report of proceedings shall be filed in Petitioner’s naval record. MINORITY CONCLUSION: After careful review and consideration of all of the evidence of record, the Minority found insufficient evidence of error or injustice to warrant any relief. The Minority also applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). Even applying liberal consideration to Petitioner’s PTSD condition, however, the Minority found that relief was not warranted under the totality of the circumstances. In reaching this conclusion, the Minority found no nexus between Petitioner’s mental health condition and the most significant incident of his misconduct (i.e., false official statements), and determined that the nature and frequency of Petitioner’s misconduct far outweighed the mitigating circumstances. Additionally, the Minority noted that Petitioner’s misconduct extended beyond his military service, as evidenced by his numerous additional arrests for driving under the influence of alcohol and several incarcerations, which further offset the mitigating factors upon which relief might have been based. Accordingly, the Minority determined that Petitioner’s OTH characterization of service remains appropriate under the totality of the circumstances. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrective action be taken on 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. 5/14/2021 XExecutive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Partial Relief – Upgrade to General (under honorable conditions)) MINORITY Recommendation Approved (Deny Relief) Petitioner’s Request Approved (Full Relief – Upgrade to Honorable) 6/15/2021 XAssistant General Counsel (M&RA) Signed by: