DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8245-20 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 of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (e) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 (NR20200008245) (2) BCNR, Advisory Opinion of 31 May 21 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting an upgrade to the other than honorable characterization of service he received for his second period of enlistment. Petitioner seeks an upgrade to an honorable characterization of service. Enclosure (2) and references (a) through (e) apply. 2. The Board consisting of Mr. , Ms. , and Mr. , reviewed Petitioner's allegations of error and injustice on 16 July 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, relevant portions of his naval service records, and applicable statutes, regulations, and policies, and relevant Advisory Opinion. 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 waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 30 December 1996. Petitioner served without disciplinary incident, and immediately reenlisted on 29 December 2000 for five years with a new contractual expiration date of 28 December 2005. d. Petitioner’s evaluations for his second period of enlistment consistently recognized Petitioner’s performance and recommended him for retention. e. On 14 April 2003, Commander, Navy Region Mid-Atlantic, authorized Commanding Officer, Fleet Combat Training Center, Atlantic to discharge Petitioner on the basis of Misconduct, with an other than honorable discharge, under MILPERSMAN 1910-146, with a separation code of HKK. Petitioner was discharged on 13 May 2003, with an other than honorable characterization of service and received a reentry (RE) code of RE-4. f. In his application to the Board, Petitioner requests an upgrade to his discharge characterization for his second period of enlistment. Petitioner contends that he was discharged for consuming medical marijuana to cope with undiagnosed symptoms of Post-Traumatic Stress Disorder (PTSD). Petitioner notes that he has a service-connected disability rating from Veterans Affairs (VA) for PTSD. He asserts that he missed out on the opportunity to get treatment 15 years ago that would have greatly changed the course of his life. He notes he has spent 10 years working with a mental health counselor to better understand his condition after going back to school to obtain a decree in Psychology. He currently works in the IT field for as a technician. He is just not betting back to the economic status and employment opportunities that he had access to 20 years ago. A discharge upgrade would assist him with gaining federal employment and would allow him to discuss his military service with pride to his children and family. g. As part of the review process, a Physician Advisor reviewed Petitioner’s contention that he suffered from PTSD while he was in the Navy. The Physician Advisor issued an Advisory Opinion dated 31 May 2021. The Advisory Opinion noted that Petitioner’s in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. The Advisory Opinion concluded that although Petitioner asserted that he suffered from mental health issues he did not provide any evidence of psychological symptoms, traumatic events, or occupational impairment to support his claim. The Advisory Opinion determined that based on the available evidence, the preponderance of objective evidence failed to establish that Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or that his in-service misconduct could be attributed to a mental health condition. The Advisory Opinion was provided to Petitioner on 1 June 2001, and he was given 30 days in which to submit a response. When he did not provide a response within the 30-day timeframe, his case was submitted to the Board for consideration. CONCLUSION The Board reviewed Petitioner’s submissions as well as his available service record, and the analysis and conclusions of the Advisory Opinion. The Board noted that Petitioner’s available service record does not reflect his complete administrative separation package. Accordingly, when assessing Petitioner’s administrative discharge proceedings, the Board applied the presumption of regularity and took into consideration the available evidence to include Commander, Navy Region, Mid-Atlantic’s administrative discharge authorization and the information reflected on Petitioner’s DD Form 214. The Board determined that consistent with Petitioner’s separation authority of MILPERSMAN 1910-146 (Separation by Reason of Misconduct-Drug Abuse) and his separation code of HKK, that Petitioner’s other than honorable discharge for his separation from active duty on 13 May 2003 was supported by his in-service misconduct of wrongful use of a controlled substance during his second period of enlistment. The Board fully and carefully considered Petitioner’s request in light of references (b)-(e), and reviewed Petitioner’s contention of suffering from undiagnosed symptoms of PTSD. The Board noted that Petitioner provided a Veterans Affairs decision document reflecting a service-connected disability rating of 30% for “other specified trauma and stressor claimed as posttraumatic stress disorder” effective 4 November 2019. Additionally, Petitioner provided a Veterans Affairs letter dated 20 February 2021 with a summary of benefits that Petitioner was currently receiving. The Board noted that Petitioner’s service connected disability rating from Veterans Affairs was effective 4 November 2019, more than 15 years after his discharge from active duty in May 2003. The Board also noted that although the Veterans Affairs documents do provide information about Petitioner’s benefits and disability rating, the documents do not reflect treatment information establishing or supporting that Petitioner suffered from a mental health condition at the time of his Naval service that may have mitigated his misconduct of wrongful use of a controlled substance. The Board substantively concurred with the determination of the Advisory Opinion and found that there is insufficient evidence to support finding that Petitioner’s in-service drug use was mitigated by a mental health condition such that an upgrade to his characterization of service for the second period of enlistment is warranted. The Board did note that Petitioner’s service record reflects that he served honorably from 30 December 1996, the start of his first period of active duty, through 29 December 2000, the date of his immediate reenlistment in the Navy for a period of five years. Accordingly, the Board determined that Petitioner’s DD Form 214 should be corrected to reflect the period of honorable service from 25 November 1996 through 29 December 2000. The Board concluded that no further corrective action is warranted. In view of the above, the Board directs the following corrective action. RECOMMENDATION: That Petitioner’s naval record be corrected to reflect a period of honorable service from 30 December 1996 through 29 December 2000. That Petitioner be issued a new DD Form 214, with the period of honorable service from 30 December 1996 through 29 December 2000 reflected. 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 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. 8/24/2021 Executive Director