DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7254-20 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER, USN, XXX­ 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 to make other conforming changes to his DD Form 214. 2. The Board, consisting of Ms. Ms. , and Mr. , reviewed Petitioner's allegations of error and injustice on 25 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 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 an 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. The Petitioner originally enlisted in the Navy and began a period of active service on 5 November 1991. The Petitioner’s last reenlistment started on 4 February 1997. c.Between 29 May 2002 and 25 September 2002, Petitioner tested positive for amphetamine/methamphetamine on five (5) separate occasions. On four of the drug tests results, Petitioner tested positive at unusually high levels of drugs in his system relative to the Department of Defense drug test cutoff levels. d. Following the fourth positive drug test result, Petitioner received non-judicial punishment (NJP) for both unauthorized absence and the wrongful use of controlled substances. On 20 September 2002 Petitioner’s command notified him of administrative separation proceedings by reason of misconduct due to drug abuse. On 23 September 2002 Petitioner elected to consult with counsel and elected his right to a hearing before an administrative separation board (Adsep Board). In the interim, Petitioner’s command received notification on 25 September 2002 of the fifth positive drug test result for Petitioner. e. On 29 October 2002 an Adsep Board convened to hear Petitioner’s case. At the Adsep Board Petitioner was represented by a Navy Judge Advocate. Following the presentation of evidence and witness testimony in the case, the Adsep Board members determined the Petitioner committed the misconduct as charged and recommended his separation from the Navy with an other than honorable (OTH) characterization of service. Ultimately, on 6 November 2002 the Petitioner was discharged from the Navy for misconduct with an OTH characterization of service and assigned an RE-4 reenlistment code. On 19 June 2018 the Naval Discharge Review Board denied Petitioner’s initial application for relief. On 20 July 2020 the Board of Veterans Appeals granted Petitioner a service-connection for PTSD. f. At the time of Petitioner’s separation from the Navy, his overall active duty trait average was 2.85 in conduct as assigned on his periodic evaluation. Navy regulations in place at the time of his discharge required a minimum trait average of 2.50 in conduct/military behavior to be considered for a fully honorable characterization of service. g. In short, Petitioner contended that he was suffering from PTSD, depression, and anxiety related to an in-service stressor of spousal abuse. Petitioner contended that his PTSD and other mental health symptoms were as a result of his spouse engaging in a pattern of abusive and erratic behavior towards him and his children, first starting in the mid-1990s. Petitioner argued that PTSD was a causative factor for his poor decisions and the behavior underlying his OTH. h. As part of the review process, the BCNR Physician Advisor, who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO on 28 April 2021. The Ph.D. initially observed that Petitioner provided ample documentation of the domestic violence he survived, as well as his diagnosis of PTSD related to the spousal abuse during his military service. The Ph.D. noted the evidence presented indicated that the domestic violence towards Petitioner started in 1996 but significantly escalated in 2000. The Ph.D. noted that typically, treatment of mental health conditions does not immediately resolve reported symptoms, especially when having to continue to have contact with the perpetrator of the stressor leading to the PTSD. The Ph.D. also noted that in such instances patients subsequently attempt to alleviate symptoms with substitutions (e.g., trying illegal substances to stay awake). The Ph.D. concluded by opining that based on the available evidence there was sufficient evidence Petitioner exhibited behaviors associated with PTSD on active duty and that Petitioner’s misconduct may be mitigated by his PTSD. 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 mitigated the pattern of drug-related misconduct used to characterize his discharge. The Board concluded that the Petitioner’s PTSD-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 OTH conditions, and that a discharge upgrade to “General (Under Honorable Conditions)” (GEN) is appropriate at this time. The Board sympathized with the well-documented domestic violence Petitioner and his children endured at the hands of his mentally ill spouse. However, the Board was not willing to grant a full upgrade to an honorable discharge. The Board did not believe, despite his overall active duty conduct trait average, that the Petitioner’s record was otherwise so meritorious to deserve an honorable characterization of service. Additionally, the Board determined that Sailors should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance greatly outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. The Board also concluded that the evidence of record did not demonstrate that Petitioner was not mentally responsible for his conduct or that he should not be held accountable for his actions. Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities. Lastly, in light of the Wilkie Memo, the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits a GEN characterization of service and no higher. Notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s 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 “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” and the separation code be changed to “JFF.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. 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. 6/29/2021 Executive Director