DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6697-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , 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,” 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 Traumatic Brain Injury (TBI),” 24 February 2016 (d)USD Memo, “Clarifying Guidance to MilitaryDischarge ReviewBoards 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,” 25 August 2017 (e) USD Memo, “Guidance to MilitaryDischarge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 with attachments (2) DD Form 214N (15 Dec 67) (3) DD Form 214N (17 Nov 69) (4)Bronze Star Medal (with Combat “V”) Certificate (5) DD Form 214N (15 Apr 74) (6) NAVPERS 1070/606, Record of Unauthorized Absence, 6 Feb 76 (7) Memo UD 7659, subj: Request for Undesirable Discharge in the case of [Petitioner], 27 Feb 76 (8) DD Form 293, Application for Review of Discharge or Dismissal from the Armed Forces of the United States, 17 Feb 81 (9) NDRB Decision Document, Docket No. ND81-02908 (10)President, NDRB Findings/Conclusions/Reasons (11) Department of Veterans Affairs Letter, 331/30/MWW, dtd 31 Oct 18 (12) BCNR Mental Health Advisory Opinion, 13 Apr 21 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 characterization of service be upgraded to honorable, that his reentry code be changed accordingly, and that his naval record be corrected to accurately reflect his medals and awards. 2. The Board reviewed Petitioner’s allegations of error or injustice on 14 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 the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. The Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy with regard to his request to upgrade his characterization of service and other associated relief before applying to this Board. He did not, however, exhaust all administrative remedies available to him regarding that portion of his application pertaining to his medals and awards. According, the Board did not consider that portion of Petitioner’s application. b. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to waive the statute of limitations and consider Petitioner’s application on its merits. c. Petitioner originally enlisted in the Navy on 13 November 1964 and served honorably on active duty until 5 December 1967. He was subsequently transferred to the Navy Reserve. During this enlistment, Petitioner earned the Vietnam Service Medal (with two bronze stars). See enclosure (2). d. Petitioner reenlisted and began a second period of active duty on 3 July 1968, again serving honorably until his discharge on 17 November 1969. See enclosure (3). During this enlistment he again served in Vietnam, and was awarded the Bronze Star Medal (with Combat “V” device) for “heroic achievement” on 2 August 1969. See enclosure (4). e. Petitioner again reenlisted in the Navy and began another period of active duty service on 15 April 1974. See enclosure (5). f. Petitioner commenced a period of unauthorized absence (UA) on 13 June 1975 and remained absent until he was apprehended by civilian authorities on 16 January 1976. See enclosure (6). g. By letter dated 18 February 1976, Petitioner requested discharge for the good of the service in lieu of trial by court-martial. He acknowledged in this letter that his discharge, if approved, would be undesirable. See enclosure (7). h. By memorandum dated 27 February 1976, the separation authority approved Petitioner’s request for discharge for the good of the service, and directed that he was separated with an undesirable discharge. See enclosure (7). i. On 11 March 1976, Petitioner was discharged from the Navy under other than honorable (OTH) conditions. See enclosure (5). j. On 17 February 1981, Petitioner applied to the Navy Discharge Review Board (NDRB) requesting an upgrade of his discharge. In this application, he contended that his punishment was too severe and inconsistent with his offense in light of his previous meritorious military service record. He also revealed that he went UA due to concerns regarding the welfare of his child coupled with morale poblems in his command. See enclosure (8). k. On 18 January 1982, the NDRB, by a vote of 3-2, recommended that Peitioner’s characterization of service be upgraded to “General (under honorable conditions).” See enclosure (9). l. Upon review, the President of the NDRB concurred with the minority opinion that Petitioner’s discharge should not be changed, thus overriding the NDRB’s majority recommendation. See enclosure (10). m. The Department of Veterans Affairs (VA) has subsequently awarded Petitioner a 100 percent disability rating for service-connected post-traumatic stress disorder (PTSD) with depression. See enclosure (11). n. Petitioner contends that his life was in turmoil when he went UA. At the same time that his ship was in overhaul and the crew was working long hours, his new wife left him and took their infant son while providing insufficient care for the child. He contends that he sought, but was unable to receive, help from his chain of command and the chaplain. Accordingly, he took matters into his own hands by going UA and getting a civilian job in , while taking custody of his son and paying for his care. See enclosure (1). o. Petitioner contends that PTSD also contributed to his decision to go UA. He believes that his PTSD developed while he was serving in Vietnam during the more than 185 combat patrols attributed to him. He further contends that his PTSD condition likely caused him to react impulsively to the turmoil in his life, without thinking about the long-term effects of going UA. See enclosure (1). p. Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for the Board’s consideration. The AO found that it was reasonable to attribute Petitioner’s misconduct to symptoms associated with PTSD, and that Petitioner’s VA disability rating lends credibility to his contention. Accordingly, the AO concluded that there is sufficient evidence Petitioner exhibited behaviors associated with PTSD during his military service and that his misconduct may be mitigated by his PTSD. See enclosure (12). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board found that partial relief is warranted in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon his PTSD condition, the Majority considered his application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s claimed PTSD condition, and the effect that it may have had upon his conduct. The Majority also gave special consideration to Petitioner’s PTSD condition due to his 100 percent disability rating from the VA. In this regard, the Board substantially concurred with the AO findings that Petitioner likely suffered from PTSD symptoms during his military service, and that the misconduct for which he was discharged may be mitigated by his condition. In addition to applying liberal consideration to Petitioner’s mental health condition and the effect that it may have upon his misconduct in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Board considered, among other factors, Petitioner’s prior periods of honorable service; Petitioner’s extensive and valorous combat record, including the evidence of his heroic actions to rescue wounded fellow U.S. service members while under fire; the mitigating effect of Petitioner’s PTSD condition upon his misconduct, as discussed above; that Petitioner likely developed PTSD as a result of his military service, and that its symptoms went undiagnosed and untreated for many years after his discharge; the difficult personal circumstances that Petitioner was dealing with at the time which influenced him to go UA; the letters of recommendation attesting to Petitioner character and performance in combat provided with his application; that the majority of the NDRB had previously voted to upgrade Petitioner’s characterization of service to general (under honorable conditions), but that this recommendation was overruled by the NDRB President; the non-violent nature of Petitioner’s misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority determined that the mitigating factors outweighed the misconduct for which Petitioner was discharged, and that his characterization of service should therefore be upgraded to general (under honorable conditions) in the interests of justice. The Majority determined that an upgrade of Petitioner’s characterization of service to fully honorable, as he requested, was not warranted under the totality of the circumstances, because the mitigating circumstances did not so significantly outweigh the severity of his 217-day UA, terminated only by his apprehension by civilian authorities, to warrant such extraordinary relief. In addition to determining that Petitioner’s characterization of service should be upgraded to general (under honorable conditions) in the interests of justice, the Majority also determined that Petitioner’s narrative reason for separation should also be so changed to minimize the possibility of future stigma attached to his military service. Finally, the Majority determined that Petitioner had not yet exhausted his remedies with regard to his request regarding his awards and medals. Accordingly, the Majority recommends that Petitioner first seek relief from the Commander, Navy Personnel Command, regarding this matter before seeking relief from this Board. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his active duty service for the period 15 April 1974 to 11 March 1976 was characterized as “General (Under Honorable Conditions)”; that the narrative reason for his separation and separation code reflect “Secretarial Authority”; and that his separation code was “JFF.” No change should be made to Petitioner’s reentry code. That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further corrective action be taken on Petitioner’s naval record. MINORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Minority of the Board determined that full relief regarding Petitioner’s request to upgrade his characterization of service is warranted in the interests of justice. The Minority also applied liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Minority concurred with the Majority determination that Petitioner’s misconduct was mitigated byhis PTSD condition. The Minority, however, disagreed with the Majority determination that the mitigating circumstances did not so significantly outweigh Petitioner’s misconduct to warrant upgrading his characterization of service to fully honorable. The Minority found Petitioner’s combat service to be so meritorious, and the circumstances of Petitioner’s UA and his PTSD condition to be so mitigating, that the mitigating circumstances far outweighed the nonviolent misconduct for which Petitioner was discharged. Accordingly, the Minority found that Petitioner’s characterization of service should be upgraded to fully honorable given the totality of the circumstances. The Minority concurred with the Majority recommendations regarding the narrative reason for his separation, as well as its determination that Petitioner had not exhausted his administrative remedies with regard to his awards and medals. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective action be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his service for the period 15 April 1974 to 11 March 1976 was characterized as “Honorable”; that the narrative reason for his separation and separation code reflect “Secretarial Authority”; and that his separation code was “JFF.” No change should be made to Petitioner’s reentry code. That Petitioner be issued an Honorable Discharge certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further corrective action be taken on 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 7/7/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Upgrade to General (under honorable conditions); Change Narrative Reason for Separation to “Secretarial Authority”) 8/17/2021 Assistant General Counsel (M&RA)