Docket No 5449-20

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW OF NAVAL RECORD OF  
              
 
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) USD memo, “Consideration of Discharge Upgrade Requests Pursuant to  Supplemental Guidance to Military Boards for Correction of Military/Naval Records  by Veterans Claiming 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 of 25 Jul 2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 
 (f) Advisory Opinion of 8 April 2021 
 
Encl:	(1) DD Form 149 w/attachments 
 	(2) Case summary 
 
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 naval record be corrected by upgrading his discharge characterization to general (under honorable conditions).  As described below, the Board recommended granting the requested relief. 
 
2.  The Board, consisting of  and  reviewed Petitioner’s allegations of error and injustice on 7 June 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken.  Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, and references (b) through (e), which include the 25 August 2017 guidance from the Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).  Additionally, the Board also considered reference (f), the 8 April 2021 advisory opinion (AO) furnished by qualified mental health provider. 
 
3.  The Board, having reviewed all the facts of record pertaining to the subject former member’s allegations of error and 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.  The Petitioner enlisted in the Navy on 23 Feb 1967.  On 30 August 1967, he received nonjudicial punishment for a one week period of unauthorized absence.  On 16 September 1967, he received a page 13 counseling/warning for various poor marks in the areas of military appearance and behavior, performance, and adaptability.  On 30 December 1968, he received nonjudicial punishment for unauthorized absence and missing ship’s movement.  On 19 March 1970, he was convicted by a special court-martial periods of unauthorized absence from 8 January 1969 to 2 June 1969 and from 14 July 1969 to 15 February 1970.  His court-martial sentence included confinement for five and a half months as well as to be discharged with a bad conduct discharge.  On 31 July 1970, he was discharged with a bad conduct discharge. 
 
 c.  The Petitioner contends that he suffered from attention-deficity hyperactivity disorder and PTSD during his service, which he contends should mitigate his misconduct.  He  believes his service was honorable because he completed his first tour in Vietnam, where he served on a minesweeper, where he never got into any trouble.  He states that he commenced a period of unauthorized absence because he did not want to go back to Vietnam. 
 
   d.  In connection with his assertion of a mental health condition, the Board requested, and received, an advisory opinion (AO), which is set forth verbatim on the brief sheet in this matter.  The AO was considered favorable to Petitioner, and included recounting the Petitioner’s experience in Vietnam as follows: 
 
Petitioner’s in-service record revealed he is authorized to wear the Republic of Vietnam Campaign Medal and ribbon with Device, as well as the Vietnam Service Medal and ribbon.  Records also indicated he underwent a neuropsychiatric evaluation in April of 1970 and although no formal diagnosis was made, it was noted he had low self-esteem.  Petitioner provided a personal statement and statements in evaluations/treatment records provided regarding the traumas he experienced while in Vietnam.  He further stated his unauthorized absences were the direct result of not wanting to return to Vietnam as he felt he would “return in a body bag.” 
 
   e.  The AO also discussed the report of the Petitioner’s civilian provider, “[a] psychiatric evaluation, dated 2018, to include psychological testing and a clinical interview opined Petitioner suffered from PTSD as a result of his military service and his misconduct was linked to his PTSD.”  Based on the available evidence, the AO concluded that, “it is my considered medical opinion there is sufficient direct evidence Petitioner exhibited behaviors associated with PTSD during his military service and his misconduct may be mitigated by his PTSD.” 
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and in view of references (b) through (f), the Board determined that, with respect to the relief that Petitioner requested, there exists an error or injustice warranting relief.  Specifically, the Board found, consistent with the AO and applying liberal consideration, that Petitioner’s misconduct during his service should be mitigated by his PTSD.  The nature of his offenses considered in light of the findings supporting PTSD supports the reasonableness of upgrading his characterization of service from other than honorable to general (under honorable conditions).  Accordingly, the Board voted unanimously to upgrade his discharge characterization to general (under honorable conditions). 
 
Accordingly, based on a careful review of all of the facts presented, the Board concludes that Petitioner is entitled to relief as follows. 
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action: 
 
Petitioner be issued a new DD Form 214 indicating that his discharge at separation was general (under honorable conditions); and 
 
That no further changes be made to Petitioner’s record. 
 
A copy of this report of proceedings shall 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 Regulations 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy. 
 
6/16/2021
Executive Director