DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6364-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER , USN, 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) 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) PDUSD 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) 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 Encl: (1) DD Form 149 with 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), impliedly requesting that his naval record be corrected to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 23 June 2021 and, pursuant to its regulations, determined 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 considered the advisory opinion (AO) furnished by a 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 interest of justice to review the application on its merits. c. Petitioner served honorably in the Marine Corps from 9 April 1996 to 2 April 2000 as a field artillery batteryman. He was discharged from the Marine Corps Reserve Individual Ready Reserve (IRR) on 26 November 2001 with an honorable characterization of service. Petitioner then entered a period of active duty in the Navy on 27 November 2001. On 12 December 2002 Petitioner received nonjudicial punishment (NJP) for an unauthorized absence; insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer; and wrongful use, possession, or distribution of a controlled substance in violation of Articles 86, 91, and 112a Uniform Code of Military Justice.1 Petitioner was discharged with an other than honorable characterization of service by reason of misconduct on 27 December 2002. d. On 15 January 2019 a Department of Veterans Affairs (VA) psychiatrist stated in a report that Petitioner developed migraines while in the Marines as a field artillery cannon crewman, and as a result, developed Major Depression. e. On 29 July 2019 the VA awarded Petitioner service connection with an evaluation of 30% for Persistent Depressive Disorder associated with migraine headaches. f. Petitioner contends that while serving in the Marine Corps and Navy, his character and performance were exemplary until his misconduct occurred. He states he was meritoriously promoted throughout his career. He further contends he was suffering from physical and mental illnesses unbeknownst to him at the time. g. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s available records and provided an AO dated 24 April 2021. The AO notes that Petitioner’s contention of an in-service mental health condition mitigating his lapse in judgement, resulting in his discharge, is supported by VA documentation. Furthermore, the AO concluded that the available objective evidence supports Petitioner’s contention he experienced an in-service mental health condition and that his in-service misconduct may be attributed to his mental health condition. 1 Petitioner’s service record is incomplete; however, this NJP was noted on an evaluation dated 27 December 2002 with no further details. Despite this, the Board relies on a presumption of regularity to support the official actions of public officers, and in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. CONCLUSION: The Board reviewed Petitioner’s application under the guidance provided in references (b) through (e). Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief and that his characterization of service should be corrected to reflect general (under honorable conditions). The Board, applying special consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner suffered from a mental health condition at the time of discharge that was secondary to migraine headaches that developed while in-service. The Board found that the condition mitigated Petitioner’s misconduct. Furthermore, the Board noted that Petitioner’s Navy DD Form 214 is incorrect. Petitioner entered Active Duty in the Navy on 27 November 2001 as evidenced by his enlistment contract, record of military processing, and discharge date from the Marine Corps Reserve IRR. Accordingly, in the interests of justice and in light of the potential for future negative implications, the Board further determined Petitioner’s separation authority, separation code, and narrative reason for separation should be changed to “Secretarial Authority,” and that his Navy DD Form 214 be corrected. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “General (Under Honorable Conditions),” separation authority as “MILPERSMAN 1910-164,” separation code as “JFF,” and narrative reason for separation as “Secretarial Authority.” Petitioner’s reentry code shall remain the same. Petitioner’s Navy DD Form 214 be corrected to reflect accurate record of service dates. That no other changes be made and 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 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. 7/9/2021 4