Docket No 5815-20

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 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 with 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 to upgrade his characterization of service and make other conforming changes to his Certificate of Release or Discharge from Active Duty (DD Form 214) following his discharge for a personality disorder.   
 
2.  The Board, consisting of  and  reviewed Petitioner's allegations of error and injustice on 21 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 Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta 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 the advisory opinion (AO) furnished by qualified mental health provider.   
 
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 interests of justice to review the application on its merits.  

c. The Board determined that Petitioner’s personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered Petitioner’s case based on the evidence of record. 
 
d. The Petitioner originally enlisted in the Navy and began a period of active service on 1 July 1991.  Petitioner reenlisted for four years on 23 June 95.   

e. Petitioner served without incident for over six years, but on 13 March 1998 Petitioner was counseled for failing to obey a lawful order and given ten hours of non-punitive extra military instruction.  On 21 May 1998 Petitioner received non-judicial punishment for two specifications of failing to obey a lawful order related to his use of the Internet on unauthorized sites and during working hours on government computers.  Petitioner was subsequently notified he was being processed for an administrative discharge by reason of misconduct.  Petitioner presumably waived his rights to consult with counsel and to present his case to an administrative separation board.  Ultimately, on 15 December 1998 Petitioner was discharged from the Navy for misconduct with a general (under honorable conditions) (GEN) characterization of service and assigned an RE-4 reentry code. 

f. Based on his available service records, Petitioner’s overall conduct trait average assigned on his periodic performance evaluations during his enlistment was 3.0.  Navy regulations in place at the time of his discharge required a minimum trait average of 2.0 in conduct (proper military behavior), for a fully honorable characterization of service. 
 
g. In short, Petitioner contended that he was suffering from PTSD related to combat and humanitarian operations during deployments to the  and   Petitioner also contended he experienced depressive symptoms following the death of his son shortly after a premature birth.  Petitioner further argued that his PTSD and mental health issues were a causative factor for the behavior underlying his separation and GEN discharge.  The Petitioner provided evidence that the Department of Veterans Affairs diagnosed him post-service with PTSD from deployment trauma experiences as well as major depressive disorder arising from the death of his child.  
 
h. As part of the review process, the Board’s Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and the available records and issued an AO dated 15 April 2021.  The MD initially observed that Petitioner provided post-discharge clinical records from the Atlanta Veterans Affairs Medical Center from August 2020 diagnosing him with PTSD from deployment trauma experiences as well as major depressive Disorder stemming from the death of his child.  The MD concluded by opining that the objective evidence supported the contention Petitioner suffered from PTSD and major depression on active duty, and that his misconduct following the traumatic stressors was mitigated by his mental health conditions.   
 
CONCLUSION: 
 
Upon review and liberal consideration of all the evidence of record and in light of the favorable AO, the Board concluded that Petitioner’s request warrants relief.  Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos.  Specifically, the Board considered whether his application was the type that was intended to be covered by these policies.  
 
In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s PTSD and depressive experiences mitigated the misconduct used to characterize his discharge.  The Board concluded that the Petitioner’s mental health-related conditions and/or symptoms as possible causative factors in the misconduct underlying his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct.  With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under GEN conditions, and that a discharge upgrade to “Honorable” is appropriate at this time.  The Board also observed Petitioner’s overall active duty trait average in conduct (proper military behavior) during his enlistment exceeded the Navy’s required minimum trait average in that category for a fully honorable characterization of service.  Additionally, in light of the Wilkie Memo, the Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that flawless service is not required for an honorable discharge and that a discharge upgrade is appropriate at this time.   
 
The Board did not find a material error or injustice with the Petitioner’s RE-4 reentry code.  The Board concluded the Petitioner was assigned the correct reentry code based on the totality of his circumstances, and that such reentry code was proper and in compliance with all Navy directives and policy at the time of his discharge.     
 
RECOMMENDATION: 
 
In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. 
 
That Petitioner’s character of service be changed to “Honorable,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” 
 
Petitioner shall be issued a new DD Form 214.  
 
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 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 
 
5/26/2021
Executive Director: