DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5522-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO 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 Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (c) PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI,” of 24 February 2016 (d) 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 (Kurta Memo) (e) USECDEF 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 (Wilkie Memo) Encl: (1) DD Form 149 w/attachments 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 to reflect an upgrade to his characterization of service, change his narrative reason for separation to disability with associated changes to his DD Form 214, set aside his non-judicial punishment with restoration of rank, re-average his trait average without the non-judicial punishment, grant him service credit that would reflect five years of service, and provide eligibility to convert his SGLI to VGLI. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 20 May 2021 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 2008 and served as a Corpsman. He was referred to the Physical Evaluation Board in January 2012 for Hepatitis B but found fit for active duty on 13 April 2012. On 8 February 2013, non-judicial punishment was imposed on Petitioner for wrongful use of drugs resulting in his administrative separation processing for misconduct. He was medically cleared for separation on 26 February 2013 despite notations that he suffered from Post-Traumatic Stress Disorder and other orthopedic conditions. On 5 March 2013, Petitioner was discharged with a General characterization due to commission of a serious offense. Post-discharge, Petitioner continued his studies and eventually transferred to College followed by University of . He commenced employment as a Behavior Health Technician from County Hospital in 2018 while continuing to pursue his nursing degree. c. On 28 February 2019, the Board denied Petitioner’s original application based on a lack of that he was unfit at the time of his discharge or that he was not responsible for his misconduct. He was similarly denied relief on 16 July 2020 based on an unfavorable advisory opinion from Director, Secretary of the Navy, Council of Review Boards (CORB). d. Petitioner again filed for reconsideration with a new argument that he suffered from mental health issues caused by smoking cessation treatment. As part of the Board’s review, a mental health advisory opinion was issued on whether Petitioner’s misconduct may be mitigated by his mental health condition. The 7 April 2021 opinion concluded “it is my considered medical opinion there is sufficient evidence Petitioner exhibited behaviors associated with a mental health condition during his military service and his misconduct may be mitigated by his mental health condition.” The opinion noted that Petitioner’s separation physical documented his mental health symptoms at the time and that he received a 30% disability rating from the Department of Veterans Affairs for Chronic Adjustment Disorder. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded the preponderance of the evidence supports partial relief in Petitioner’s case. Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos. Based on the favorable 7 April 2021 advisory opinion, the Board determined that Petitioner’s narrative reason for separation should be changed to Secretarial Authority. While the Board did not excuse Petitioner’s misconduct, in keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s mental health condition at the time mitigated Petitioner’s misconduct sufficiently to merit changing his narrative reason for separation. Notwithstanding the recommendation for change to Petitioner’s narrative reason for separation, the Board concluded the preponderance of the evidence does not support any further relief. The Board determined, despite a finding that his misconduct was mitigated by his mental health condition, Petitioner was still mentally responsible for the misconduct that resulted in the imposition of non-judicial punishment and his administrative separation. Therefore, they concluded he was appropriately punished with non-judicial punishment and administratively separated for his misconduct. Accordingly, the Board determined none of the relief associated with setting aside the non-judicial punishment or administrative separation is supported by the preponderance of the evidence. Specifically, the Board concluded no restoration of rank, re-averaging of his trait average, service credit, or restoration of SGLI to VGLI conversion was appropriate. Moreover, the Board determined Petitioner’s mental health condition did not merit an upgrade to Petitioner’s characterization of service since he was already granted a General under Honorable Conditions. The fact Petitioner was assigned a General characterization of service for misconduct that normally warrants an Other than Honorable characterization was persuasive evidence to the Board that he already received mitigation for his mental health condition at the time of his discharge. In their opinion, a General discharge was a proper characterization of service in light of the drug related misconduct for which Petitioner was processed for separation. Therefore, after applying liberal consideration required under aforementioned guidance policies, the Board felt strongly that insufficient mitigation evidence exists to merit an upgrade to an Honorable characterization of service. In making this finding, the Board also took into consideration that they recommended changing Petitioner’s narrative reason for separation to Secretarial Authority to address any injustice that exists in his case. Finally, the Board concluded that Petitioner’s request to change his narrative reason for separation to disability was not supported by the preponderance of the evidence. The Board concurred with the prior case CORB advisory opinion in determining that insufficient evidence of unfitness exists to support relief. Specifically, the Board relied on Petitioner’s performance evaluations that document he was performing at fleet standards for his paygrade and rate despite the existence of mental health symptoms. Additionally, the Board relied on the separation physical that medically cleared Petitioner for release from active duty. Based on these factors, the Board determined that Petitioner would have been able to continue his active duty service but for his misconduct. Therefore, they determined he did not meet the criteria for unfitness for continued naval service at the time of his discharge from the Navy. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by upgrading Petitioner’s characterization of service from General under Honorable Conditions to Honorable. Additionally, Petitioner’s narrative reason for separation shall be changed to “Secretarial Authority” and his SPD code to “JFF.” Petitioner will be issued a new DD Form 214 consistent with this change. 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. 5/29/2021 3