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) 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 (c) 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) Standard Form 88, Report of Medical Examination, 26 Jul 85 (3) Standard Form 93, Report of Medical History, 26 Jul 85 (4) DD Form 214 (5) NAVPERS 1070/613, Administrative Remarks, 5 May 86 (6) NAVPERS 1070/613, Administrative Remarks, 19 Jun 86 (7) NAVPERS 1070/613, Administrative Remarks, 1 Aug 86 (8) NAVPERS 1070/613, Administrative Remarks , 28 Aug 86 (9) USS SPARTANBURG COUNTY Msg, subj: [Petitioner], Recommendation for Admin Separation by Reason of Misconduct due to a Pattern of Misconduct, dtg 102020Z Aug 87 (10) NAVPERS 1070/607, Court Memorandum, 5 Aug 87 (11) USS Msg, subj: Drug Dependency Status ICO [Petitioner], dtg 101300Z Sep 87 (12) COMNAVMILPERSCOM Msg, subj: Misconduct Disch ICO [Petitioner], dtg 191827Z Sep 87 (13) Health Assessment/Plan, 24 July 2017 (14) Clinic Crisis Plan, 10 February 2018 (15) BCNR Advisory Opinion, 24 March 2021 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 general (under honorable conditions). 2. The Board reviewed Petitioner's allegations of error or injustice on 9 April 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) and (c). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error or 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 interests of justice to review Petitioner’s application on its merits. c. Petitioner’s enlistment physical noted that he reported being a “habitual [marijuana] user.” See enclosures (2) and (3). d. Despite this medical history and admitted habitual use of drugs, Petitioner enlisted in the Navy and began a period of active duty service on 17 September 1985. See enclosure (4). e. On 3 May 1986, Petitioner received non-judicial punishment (NJP) for drunk and disorderly conduct in violation of Article 134, Uniform Code of Military Justice (UCMJ). See enclosure (5). On 19 June 1986, Petitioner was counseled for this misconduct and warned that any further deficiencies in his performance and/or conduct may result in disciplinary action and in processing for administrative separation. See enclosure (6). f. On 1 August 1986, Petitioner received his second NJP for three specifications of unauthorized absence (UA) in violation of Article 86, UCMJ, and for being drunk on duty in violation of Article 134, UCMJ. See enclosure (7). g. On 28 August 1986, Petitioner received his third NJP for being disrespectful toward a superior noncommissioned officer in violation of Article 91, UCMJ. See enclosure (8). h. On 22 May 1987, Petitioner received his fourth NJP for UA in violation of Article 86, UCMJ. See enclosure (9). i. On 5 August 1987, Petitioner received his fifth NJP for UA in violation of Article 86, UCMJ, and for wrongful use of marijuana in violation of Article 112a, UCMJ. See enclosure (10). j. On 7 August 1987, Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. See enclosure (9). k. On 7 August 1987, Petitioner elected to waive his right to consult with counsel and to present his case at an administrative discharge board. See enclosure (9). l. On 10 August 1987, Petitioner’s commander recommended to the separation authority that Petitioner be involuntarily separated from the Navy by reason of misconduct due to a pattern of misconduct. See enclosure (9). m. On 9 September 1987, Petitioner was evaluated by a medical officer during his separation physical and found to be psychologically dependent on marijuana. See enclosure (11). n. By message dated 19 September 1987, the separation authority directed that Petitioner be involuntarily discharged from the Navy under other than honorable (OTH) conditions for misconduct due to a pattern of misconduct. See enclosure (12). o. On 25 September 1987, Petitioner was discharged from the Navy under OTH conditions for misconduct due to a pattern of misconduct. See enclosure (4). p. On 29 July 2013, Petitioner was diagnosed by a civilian provider with schizoaffective disorder. See enclosure (13). The records that he provided reflect on-going treatment for this condition, the diagnosis of which evolved over time into bipolar-type schizoaffective disorder. q. On 10 February 2018, Petitioner was diagnosed by a civilian mental health provided with paranoid-type schizophrenia. See enclosure (14). r. Petitioner contends that the conduct which resulted in his discharge was affected by the early stages of his mental illness. Specifically, he asserts that his conduct was the product of the early stages of his schizophrenia, and that he was coping with his symptoms by relying on alcohol and other substances to “try to slow [his] brain down and mask [his] symptoms.” See enclosure (1). s. 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 noted Petitioner’s post-service treatment records for schizophrenia versus schizoaffective disorder, and observed that Petitioner was noted to experience increased alcohol use, violent thoughts, auditory hallucinations which “torture” him, and visual hallucinations of “demons and spirits” during stages of decompensation. The AO also noted that while psychotic disorders are difficult to diagnose and treat, the age of onset is typically around the age in which Petitioner enlisted in the Navy. The AO concluded that there is sufficient evidence Petitioner may have exhibited behaviors associated with a mental health condition during his military service and that his misconduct may be mitigated by that condition. See enclosure (15). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that Petitioner’s application warrants relief in the interests of justice. Because he based his claim for relief in whole or in part upon his mental health condition, the Majority reviewed Petitioner’s application in accordance with the guidance of reference (b). Accordingly, the Majority applied liberal consideration to Petitioner’s claimed mental health condition and the effect that it may have had upon his conduct. In this regard, the Majority substantially concurred with the AO finding that Petitioner may have exhibited the early symptoms of a psychotic mental health condition during his military service, and that his conduct may have been influenced or mitigated by this condition. In addition to applying liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon Petitioner’s misconduct in accordance with reference (b), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Majority considered, among other factors, that Petitioner may have been suffering the early symptoms of a psychotic mental health condition which mitigated the conduct for which he was separated; that Petitioner was permitted to enlist despite reporting his habitual use of marijuana; Petitioner’s ongoing struggle with his mental health condition; Petitioner’s overall active duty conduct trait average of 3.2, which was in excess of that required for an honorable discharge; the relatively minor, non-violent nature of Petitioner’s misconduct, much of which was predictable due to his identified substance dependency; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority determined that the mitigating circumstances were sufficient to warrant an upgrade of Petitioner’s characterization of service to general (under honorable conditions), especially under the liberal consideration standard. Under the totality of the circumstances, the Majority concluded that no useful purpose is served by continuing to characterize Petitioner’s service as OTH, so an upgrade was appropriate in the interests of justice. Despite the fact that Petitioner did not request it, the Majority considered whether an upgrade of Petitioner’s characterization of service to fully honorable was warranted in the interests of justice. While the Majority found the mitigating circumstances sufficient to warrant an upgrade to general (under honorable conditions), it did not find those circumstances to so significantly outweigh Petitioner’s misconduct to warrant an upgrade of his characterization of service to fully honorable. Although Petitioner’s individual acts of misconduct were relatively minor, they were numerous and clearly had an adverse effect upon good order and discipline in Petitioner’s unit. The Majority also determined that Petitioner’s reentry code remains correct under the circumstances. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective actions be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issue a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions)”; that the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MILPERSMAN 1910-164”; and that his separation code was “JFF.” That no further corrections be made to Petitioner’s naval record. That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Minority of the Board found insufficient evidence of any error or injustice to warrant relief. The Minority also applied the guidance of reference (b) to Petitioner’s claimed mental health condition and the effect that it may have had upon his misconduct. Even applying liberal consideration to these matters, however, the Minority could find no nexus between any purported mental health condition or symptoms, and the misconduct for which Petitioner was separated. In this regard, the Minority noted that the AO was inconclusive regarding the possibility that Petitioner suffered from a mental health condition during his service and the potential mitigating effect of this condition upon his misconduct. The Minority considered the nature of Petitioner’s voluminous misconduct, and simply could not find a logical nexus between Petitioner’s claimed mental health condition and the majority of the misconduct for which he was separated. The Minority also considered the totality of the circumstances to determine whether relief was warranted in the interests of justice in accordance with reference (c). However, having assigned far less mitigating value to Petitioner’s mental health condition than was assigned by the Majority, the Minority determined that the nature and quantity of the misconduct for which Petitioner was discharged far outweighed the potentially mitigating circumstances. The Minority concluded that Petitioner’s conduct represented a significant departure from that expected of a Sailor, and that his OTH characterization of service was therefore appropriate. Accordingly, the Minority determined that relief was not warranted under the totality of the circumstances. MINORITY RECOMMENDATION: In view of the above, the Minority 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. 5/4/2021 X Executive Director Assistant General Counsel (Manpower and Reserve Affairs) MAJORITY Recommendation Approved (Upgrade to General (under honorable conditions); Change Narrative Reason for Separation to “Secretarial Authority”) MINORITY Recommendation Approved (Deny Relief) Additional Relief (Upgrade to Honorable; Change Narrative Reason for Separation to “Secretarial Authority”) 6/15/2021XAssistant General Counsel (M&RA)Signed by: