DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 5835-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR , XXX-XX- USN Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Senior Medical Advisor CORB letter 1910 CORB: 002 of 2 Mar 2021 (3) Director CORB letter 1910 CORB: 001 of 6 April 2021 (4) Petitioner’s response to Advisory Opinion dated 5 May 2021 (5) Report of medical history dated 16 April 2004 (6) Performance evaluation ending 11 January 2005 (7) Performance evaluation ending 15 July 2006 (8) Post-Deployment Health Assessment (9) Non-judicial punishment of 11 October 2006 (10) Non-judicial punishment of 27 October 2006 (11) Medical record of 10 November 2006 (12) Non-judicial punishment of 14 November 2006 (13) Naval Discharge Review Board letter of 18 March 2008 (14) Naval Discharge Review Board letter of 7 December 2015 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 place him on the Temporary Disability Retirement List from 17 November 2006 through 16 November 2010 with an Honorable discharge with a 10% disability rating. Alternatively, he requests an upgrade to his characterization of service and a change to his narrative reason for separation to Condition not a Disability. 2. The Board reviewed Petitioner’s allegations of error and injustice on 13 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, naval records, and applicable statutes, regulations and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). In addition, the Board considered enclosures (2) and (3) along with Petitioner’s response contained in enclosure (4). 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 April 2004 after failing to disclose on his pre-enlistment Report of Medical History, a history of drug and alcohol use as a teenager or mental health symptoms. See enclosure (5). Petitioner disclosed in his post-discharge medical treatment that he was also hospitalized for six months prior to entering the Navy for hearing voices and seeing shadows. See enclosure (2). c. Petitioner performed well in his initial period of active duty which included a deployment to the through 9 January 2006. He assessed his health to be excellent through January 2006. See enclosures (6)-(8). However, his performance and conduct subsequently deteriorated after the summer of 2006 as he experienced personal issues. Non-judicial punishment was imposed on him twice in October 2006 for being insubordinate, disobeying a lawful order, and an orders violation. See enclosures (9) and (10). Petitioner was subsequently referred for mental health treatment on 10 November 2006 after being caught reporting to work intoxicated and expressing suicidal ideations. He was diagnosed with an adjustment disorder but determined to be psychiatrically fit for duty. See enclosure (11). On 14 November 2006, non-judicial punishment was imposed on Petitioner for the incapacitation for duty incident and communicating a threat to the Chief who reported his misconduct. See enclosure (12). Petitioner was discharged for commission of a serious offense on 17 November 2006 with an Other than Honorable characterization of service. d. Post-discharge, Petitioner admits to consuming “a lot of marijuana” and abusing alcohol. This led to homelessness and an arrest for burglary in the following years. Around the time of his arrest is when Petitioner reported hearing voices that eventually led to his mental health treatment for Schizoaffective Disorder. His Department of Veterans Affairs treatment record documents that he was diagnosed with a Schizoaffective Disorder in 2011 along with his history of abusing alcohol, cocaine, ecstasy, and marijuana. Medical reports in 2014 indicate Petitioner’s condition improved resulting in steady employment and reduction in symptoms. e. The Naval Discharge Review Board denied Petitioner’s request for an upgrade to his characterization of service in 2008 and 2015. See enclosures (13) and (14). f. In enclosures (2) and (3), the office with cognizance over the Physical Evaluation Board and placing service members on the disability retirement list concluded that insufficient evidence exists to grant Petitioner’s request for a disability retirement and discharge. The advisory opinions concluded that “inadequate objective evidence contemporary with the petitioner’s enlistment that the Schizoaffective Disorder diagnosed 4 years after service discharge was both present and unfitting at the time of discharge.” However, the opinions also concluded that Petitioner’s misconduct should be mitigated since it appears it was related to his diagnosed Adjustment Disorder and alcohol abuse caused, in part, to his personal issues and duty related stressors. Petitioner argued in enclosure (4) that the advisory opinions should be discounted with regard to its determination that placement on the disability retirement was not warranted. In Petitioner’s opinion, the advisory opinion failed to provide an adequate rationale for its conclusion regarding disability retirement. Despite opposing the advisory opinions conclusion regarding disability retirement, Petitioner points out that the opinion supports that his misconduct was a direct result of his mental health condition at the time. MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, the majority of the Board concluded the preponderance of the evidence supports partial relief in Petitioner’s case. Specifically, the Board determined that Petitioner’s misconduct was mitigated by evidence he suffered from a mental health condition that contributed to his misconduct. After liberally considering the effect of his mental health condition at the time, the Board determined it was in the interests of justice to grant him an upgrade to his characterization of service to General under Honorable conditions. In making this finding, the Board considered Petitioner’s honorable service from the commencement of his active duty service until approximately October 2006. Despite determining Petitioner’s characterization of service should be upgraded, the Board determined his narrative reason for separation should remain unchanged. The Board concluded Petitioner’s separation for commission of a serious offense was supported by his three non-judicial punishments and the seriousness of his misconduct. Additionally, despite evidence that his mental health condition contributed to his misconduct, the Board found no evidence that Petitioner was not mentally responsible for the misconduct that formed the basis for his discharge from the Navy. Therefore, the Board concluded no error or injustice exists with his narrative reason for separation. Regarding Petitioner’s request to be placed on the disability retirement list for a period of four years and be discharged with severance pay, the Board concluded the preponderance of the evidence does not support relief. In making this finding, the Board substantially concurred with the advisory opinions in this case. Specifically, the Board determined the mental health diagnoses issued contemporaneous with Petitioner’s treatment while on active duty should be given more weight than the opinion that he was misdiagnosed. Since Petitioner was diagnosed with an adjustment disorder, a non-compensable disability condition at the time, he was not eligible for placement on the disability retirement list. Further, as previously determined by the Board, Petitioner was mentally responsible for his misconduct that formed the basis for his discharge. Therefore, regardless of his diagnosis, the Board concluded Petitioner was ineligible for military disability benefits since disability regulations directed misconduct based processing to supersede disability processing in cases that qualified for an Other than Honorable characterization of service. Finally, the Board determined the interests of justice do not support providing any disability benefits to Petitioner based on his failure to disclose his preservice mental health history or his drug and alcohol abuse. In the Board’s opinion, Petitioner should not reap the benefits of his omission to disclose medical evidence that, more likely than not, would have disqualified him from entrance into the Navy. MAJORITY RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by upgrading his characterization of service from Other than Honorable to General under Honorable conditions. Petitioner will be issued a new DD Form 214 reflecting this change to his record. MINORITY CONCLUSION Upon review and consideration of all the evidence of record, the minority of the Board concluded the preponderance of the evidence does not support relief in Petitioner’s case. Specifically, the minority of the Board found Petitioner’s history of misconduct too serious to merit an upgrade to his characterization of service. Despite the existence of a nexus between Petitioner’s misconduct and his mental health condition at the time, the minority determined it offered insufficient mitigation to merit any relief. MINORITY RECOMMENDATION Deny relief. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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. The foregoing action of the Board is submitted for your review and action. 5/17/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Majority Recommendation (Partial Relief) Reviewed and Approved Minority Recommendation (Deny Relief) 6/15/2021 Assistant General Counsel (M&RA)