Docket No: 0798-20 Ref: Signature date Dear : This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 15 March 2021. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, including the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). The Board also requested and reviewed a 1 March 2021 2021 Advisory Opinion (AO) from a mental health professional. You applied for Navy officer candidate school in 2014. You were selected to attend, and you began your training on 21 October 2016, in . Throughout the course of OCS you received substandard class peer evaluations and faculty reports. Several of these peer evaluations rated you below the minimum satisfactory standards, and many questioned your integrity, personal relations, bearing, tact, and dependability. In addition, several peer evaluations reported that you told classmates that you were “on the [autism] spectrum.” As a result of your peer evaluations, the OCS leadership required you to attend a records review board. On 18 January 2017, a records review board found that you purposely failed to report your mental health history during the pre-enlistment process. In fact, before applying to OCS, you met with a licensed clinical social worker who diagnosed you with intermittent explosive disorder (IED) and social anxiety disorder (SAD). On 20 January 2015, a different mental health professional diagnosed you with Autism Spectrum Disorder (ASD). Yet, in your Navy pre-enlistment medical screening form, dated 13 February 2015, you responded “No” to the question of whether you had ever “[s]een a psychiatrist, psychologist, social worker, counselor or other professional for any reason (inpatient or outpatient) including counseling or treatment for school, adjustment, family, marriage or any other problem” on your pre-enlistment medical screening form. On 23 January 2017, the record review board recommended that you be disenrolled from OCS based upon your failure to adhere to core values, including by concealing potentially disqualifying information on your OCS application as well as concealment of required information on your security clearance application. On or about 23 January 2017, you were referred to the mental health clinic at the Naval Health Center for a psychiatric evaluation based upon the discovery that you had past psychiatric diagnoses. According to your medical records from this evaluation, it was noted that you provided incorrect information on your pre-enlistment documentation to get into the Navy. It was also noted that you had demonstrated a number of problems and had been found to lie a number of times. It was reported that you snapped back at staff when corrected, that you were verbally aggressive with your peers by yelling and swearing at them, and that your peer evaluations and class officer evaluations reported significant problems. Finally, it was reported that you become highly agitated with minimal provocation. Based on this evaluation, you were referred for a psychiatric assessment. On or about 13 February 2017, a psychiatrist at the Behavioral Health Clinic diagnosed you with ASD, generalized anxiety disorder (GAD), IED, and SAD, based primarily upon your mental health history. During this assessment, you admitted that you did not disclose the fact that you were previously diagnosed with ASD. You also admitted that you did not disclose your full psychiatric history because you feared that you would be disqualified from the Navy as a result. Because you did not agree with these diagnoses, you requested a second opinion. On 23 February 2017, you received a second opinion from a different psychiatrist, who diagnosed you with ASD and an impulse control disorder, but did not diagnose you with IED, finding that it was not possible to make such a definitive diagnosis. This psychiatrist’s assessment was that “the combination of an impulse control disorder along with the symptoms of [ASD] have made it difficult for [you] to manage some of the interpersonal stressors of training at OCS and will be very difficult for [you] to manage during the expected stressors of a career as a Naval Officer.” The psychiatrist opined that you were not fit for commissioning in the Navy, and recommended that a waiver not be granted for these conditions. On 10 March 2017, you graduated with your OCS class, but you were not commissioned. In April 2017, the Navy Bureau of Medicine and Surgery (BUMED) determined that you did not meet the established physical standards for commissioning in the Navy “due to history of [ASD], and history of disturbance of conduct, impulse control, other behavior disorders, or personality disorder that will likely interfere with adjustment in the Military Services.” BUMED further recommended that a waiver of the physical standards for commissioning not be granted. On 26 April 2017, you requested a waiver of your physical disqualification for commissioning. On 1 May 2017, the Commander, Naval Service Training Command, denied your request for a waiver and directed that you be discharged for being found not physically qualified for commissioning. On 3 May 2017, you had a separation physical, and you were found physically qualified for release from active duty and that no medical condition had been noted that disqualified you from the performance of your duties or which warranted disability evaluation system processing. On 3 May 2017, you were honorably discharged from the Navy. The narrative reason for your separation was “failed medical/physical procurement standards” and your reentry code was “RE-3Q.” Following your discharge from the Navy, you sought another opinion regarding your mental health diagnoses. In August 2017, you underwent an extensive neuropsychiatric evaluation by a civilian mental health provider. This evaluation found that your prior mental health evaluations were deeply flawed and that you had no diagnosable psychiatric disorders. Specifically, it determined that your diagnosis with ASD in 2015 failed to adequately review your early psychosocial and behavioral development, which is required for an ASD diagnosis, and misinterpreted “repetitive behaviors” reported by your parents. This evaluation concluded that you are “well suited to being a military officer,” and stated that you demonstrated no social or behavioral problems prior to your mental health diagnoses while at OCS. The Board carefully considered all potentially mitigating factors in your current petition to determine whether relief is warranted in your case in the interests of justice in accordance with the Wilkie Memo. These included, but were not limited to, your contentions that you were misdiagnosed with ASD, and that your separation violated the Navy’s regulations as well as your due process rights. Specifically, you contend that the first and second mental health evaluations conducted by the psychiatrists on 13 and 23 February 2017 were not thorough, not in compliance with Department of Defense regulations pertaining to medical boards, did not provide you a right to counsel, and did not provide you the right against self-incrimination. You further contend that you do not have a disqualifying medical condition, and that you are fully qualified for the commission that you contend you earned by completing OCS. Your petition and records were reviewed by a mental health professional who provided an advisory opinion for the Board’s consideration. Based primarily upon the conclusions of the post-service neuropsychiatric evaluation conducted in August 2017, the AO found it likely that your diagnosis with ASD, as well as GAD, IED, and SAD, were based on flawed pre-service evaluations, which influenced your in-service psychiatric evaluations. The AO found that this gave greater credence to your contention of an erroneous diagnosis and disqualification from the service due to failed procurement standards. The AO did caveat its findings by stating that, “Petitioner’s failure to disclose potentially disqualifying mental health conditions, reports of inappropriate interactions with his fellow officer candidates, and questions about his leadership abilities are separate issues from the discussed mental health conditions, and are not addressed in this medical [AO].” Based upon its review, the Board concluded there was insufficient evidence of error or injustice to warrant relief. The Board noted that the evidence reflects that you were diagnosed with some form of autism by three separate mental health professionals, and treated for behavior consistent with such a diagnosis by a fourth, at various stages of your life. The first psychiatrist you saw while in OCS diagnosed you with ASD on 13 February 2017. As you contend, that psychiatrist relied significantly on the previously-made diagnoses in making her own diagnosis, yet this psychiatrist interviewed you and reviewed the peer evaluations and instructor comments pertaining to you during OCS. The fact that she reviewed the peer evaluations and instructor comments is important because the report of your post-service psychiatrist states that you demonstrated no social or behavioral problems prior to your mental health diagnoses while at OCS. The records, in fact, demonstrate that you were described as having social and/or behavioral problems while at OCS, and these facts have been described as relevant to an accurate diagnosis of ASD. The psychiatrist who provided a second opinion while you were at OCS also diagnosed you with ASD on 23 February 2017. This provider did not diagnose you with GAD, IED, or SAD. In fact, he specifically refuted the diagnosis of IED, and commented that he could not determine the clinical social worker’s diagnosis based upon her comments and notes. He did, however, diagnose you with ASD, just as previous mental health professionals had done, as well as an impulse control disorder. This diagnosis refutes the conclusions of both the post-service neuropsychiatric evaluation commissioned by you, and the AO, that your ASD diagnosis was likely based on flawed pre-service evaluations. For the reasons set forth above, the Board specifically did not credit the AO’s finding that your diagnoses were based on flawed pre-service evaluations. The Board recognizes that different mental health professionals can reach different conclusions based upon the same evidence. In this case, three separate mental health professionals concluded that you had ASD, and a fourth treated symptoms and observed behaviors consistent with ASD. None of these mental health professionals had any apparent bias against you. Accordingly, the Board determined it is not in a position to second-guess the medical professionals at NHC New England or at BUMED with regard to your medical qualification to be commissioned as an officer in the Navy based solely upon a contrary diagnosis commissioned by you. In fact, the reentry code that you received, RE-3Q, is a waivable code. Should you re-apply to an armed service, you will be given the opportunity to follow the process for seeking a waiver that is provided to you by the service to which you apply. At that time, the appropriate entity can review your current health status and make an informed judgment whether to allow you to reenlist. The Board found no merit in your assertion that the Navy failed to adhere to disability regulations by discharging you without a referral to the Disability Evaluation System with applicable due process rights. Department of Defense Instruction 6130.03 establishes Department of Defense policy for physical and medical standards for appointment, enlistment, or induction into the Military Services and applies to applicants for appointment as commissioned officers in the Active and Reserve components. Section 5 of the instruction lists disqualifying conditions, among which is ASD. Therefore, based on your diagnoses of ASD, the Board concluded you were appropriately disqualified for commissioning by the Navy in accordance with the instruction. Consistent with that finding, the Board also determined you did not meet the criteria for referral to the Disability Evaluation System. SECNAVINST 1850.4E provides circumstances that do not justify a referral to the Physical Evaluation Board. Paragraph 3202(f) of that instruction states that an inability to meet initial enlistment/appointment standards does not require a referral to the disability evaluation system. Inasmuch as your disqualification for commissioning was based solely on your ASD and your separation physical determined you to be otherwise fit for separation, the Board determined you did not suffer from any disabling conditions that merited a referral to the Disability Evaluation System. In making this finding, the Board took into consideration that the Manual of the Medical Department requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Service members are physically qualified for recall to additional periods of active duty. Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service …” The Board also relied on several other factors in reaching its conclusion that there was no injustice in your removal from OCS. First, you admittedly lied on your medical screening forms for enlistment in the Navy. You did so specifically because you feared that your previously diagnosed condition and treatment would render you ineligible to serve. If you had completed these forms accurately, your mental health would have been evaluated prior to your acceptance to OCS. It is impossible to know what such an evaluation would have determined, but it would have been conducted without the benefit of the numerous adverse peer evaluations and observations of your behavior during OCS which tended to validate the accuracy of your previously diagnosed condition. The Board believed that you put yourself into a position where your own conduct confirmed a service-disqualifying mental health diagnosis with your dishonesty. Regardless of whether your ASD diagnoses are accurate, the Board relied in part on this fact in determining there is no injustice or error in the Navy’s denying you a commission. The Board also found no error or injustice in the process by which you were separated. In accordance with MILPERSMAN 1910-130, separations for defective or erroneous enlistments utilize the notification procedures of MILPERSMAN 1910-402. It is clear from the record that you were afforded, and availed yourself of, the opportunity to make a statement on your behalf prior to your separation being directed. Specifically, you requested a waiver of your medically disqualifying condition. Accordingly, the Board found no error or injustice in the procedures utilized to separate you from the Navy. Finally, the Board found your contention that you were improperly questioned by mental health professionals without the benefit of your Article 31, Uniform Code of Military Justice (UCMJ), rights, or the benefit of an attorney, to be without merit. There is no reason to believe that these questions were asked to illicit incriminating information. Neither of the mental health providers who evaluated you at had any command or disciplinary authority over you, and there is no evidence that any disciplinary action was ever taken or contemplated; rather, the questions were asked for medical evaluation purposes only. Accordingly, the Board found no error or injustice in their failure to read to you your Article 31, UCMJ, rights or to provide you with an attorney to represent you at your psychiatric evaluations. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.