DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8374-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USN, XXX-XX- 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 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,” 25 August 2017 (e) USD Memo, “Guidance to MilitaryDischarge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or ClemencyDeterminations,” 25 July 2018 Encl: (1) DD Form 149 (2)DD Form 214 (3) Department of the Memo, subj: Recommendation for Administrative Separation by reason of Misconduct due to a Pattern of Misconduct in the case of [Petitioner], of 26 Oct 91 (4)NJP, of 13 Jul 91 (5)NJP, of 1 Aug 91 (6)NJP, of 4 Oct 91 (7)Counseling Record (8) Mental Health Serivces Records (9) Ltr from Mental Health Services Provider, dtd 1 Nov 18 (10) Advisory Opinion (AO), of 5 Jun 20 (11) Petitioner’s Rebuttal to AO, of 30 Dec 20 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 either general (under honorable conditions) or honorable, and that the narrative reason for his separation be changed to “Secretarial Authority.” 2. The Board reviewed Petitioner’s allegations of error and injustice on 13 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on Petitioner’s record.1 Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all the facts of record pertaining to the 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 interests of justice to consider Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 15 September 1989. See enclosure (2). d. On 12 February 1991, Petitioner received nonjudicial punishment (NJP) for failing to get to his appointed place of duty in violation of Article 86, Uniform Code of Military Justice (UCMJ); for wearing an unauthorized uniform in violation of Article 92, UCMJ; and for willful disobedience of a superior petty officer in violation of Article 91, UCMJ. See enclosure (3). e. On 13 July 1991, Petitioner received a second NJP for disrespecting a superior commissioned officer in violation of Article 86, UCMJ, and for failing to go to his prescribed place of duty in violation of Article 86, UCMJ. See enclosure (4). f. On 1 August 1991, Petitioner received his third NJP for two specifications of insubordinate conduct toward a superior petty officer in violation of Article 91, UCMJ. See enclosure (5) g. On 4 October 1991, Petitioner received his fourth NJP for willful disobedience of a superior petty officer in violation of Article 92, UCMJ, and for willfully damaging government property in violation of Article 108, UCMJ. See enclosure (6). h. In addition to the above references NJPs, Petitioner’s record reflects numerous additional negative performance counselings for a variety of misconduct and other conduct deficiencies, to include several UAs and dereliction of duty. See enclosure (7). i. By memorandum dated 14 October 1991, Petitioner was notified that he was being considered for an administrative discharge for a pattern of misconduct. Petitioner subsequently waived his right to an administrative separation board. By memorandum dated 26 October 1991, Petitioner’s commanding officer (CO) strongly recommended to the separation authority that Petitioner be separated with a general (under honorable conditions) characterization of service. In making this recommendation, the CO stated that Petitioner “is neither a troublemaker or [sic] a thief, but he is unable to cope with authority at any level. He loses his temper, becomes belligerent and extremely defensive when counseled on work performance. His inability to follow orders and directions combined with an uncontrollable temper is incompatible with military service.” See enclosure (3). 1 The Board previously considered Petitioner’s application on 31 August 2020 and denied relief byletter dated5 November 2020 (BCNR Docket No. 3558-19). Subsequent to this decision, however, it was discovered that Petitioner may not have received enclosure (10)for comment. Accordingly, Petitioner’s case was reopened and considered after receipt of his rebuttal to enclosure (10). j. Despite the CO’s recommendation, Petitioner was discharged from theNavy on 13 December 1991 under other than honorable (OTH) conditions for a pattern of misconduct. See enclosure (2). k. Petitioner contends that he was targeted for race-based harassment during his time in the Navy. Specifically, he claims that he received punishment for minor infractions that would have gone unpunished for other Sailors, and that his supervisors constantly set him up for failure. Petitioner claims that disparate treatment of Sailors based on race was common in his squadron. In support of his claim of racial disparity, Petitioner provided several scholarly articles and reports substantiating inherent racial disciplinary bias, to include a report reflecting implicit racial bias in the military in particular. l. Petitioner’s post-service medical records reflect that he was diagnosed with Major Depressive Disorder (recurrent) in 2012. See enclosure (8). Petitioner also provided a letter from a mental health provider stating that he had symptoms of post-traumatic stress disorder (PTSD) prior to his enlistment in the Navy as the result of childhood abuse and neglect, and that these sympoms were aggravated by the race-based harassment that he suffered in the Navy. See enclosure (9). k. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board’s consideration. This AO found no evidence of psychological symptoms suggestive of PTSD. Accordingly, it found insufficient evidence that Petitioner incurred a mental health condition attributable to his military service, or that his in-service misconduct may be attributable to a mental health condition. See enclosure (10). m. In response to this AO, Petitioner asserts that he is entitled to liberal consideration because the mental health provider statement in enclosure (10) is more persuasive than the AO. Petitioner further asserted that, regardless of whether liberal consideration is granted, he should be entitled to relief because his discharge was unjust because it was disproportionate to his misconduct and due to the race-based harassment that he endured.2 See enclosure (11). 2 The provider ofthe AO reviewed Petitioner’s rebuttal to the AO on 6 January 2021, but found nothing in it to change his opinion. CONCLUSION: Upon careful and conscientious review of all the evidence of record, the Board finds an injustice warranting the relief indicated below. Due to the assertion in enclosure (9) that Petitioner’s pre-service PTSD symptoms were aggravated by the treatment he endured in Navy, Petitioner’s application was reviewed in accordance with the guidance of references (b) – (d). Accordingly, the Board applied liberal consideration to Petitioner’s asserted PTSD condition and the effect that it may have had upon his conduct. The Board concurred with the AO finding that there was insufficient evidence that Petitioner incurred a mental health condition as a result of his military service. However, the Petitioner never made this claim. Rather, enclosure (9) suggested that Petitioner’s reactions and responses to the race-based harassment and targeting that he described were likely influenced by his preexisting PTSD symptoms arising from past trauma and abuse. The Board found that the nature of Petitioner’s otherwise relatively minor misconduct, viewed in light of this explanation under the liberal consideration standard and contrary to the AO, could be explained and therefore at least somewhat mitigated under the circumstances. In addition to applying liberal consideration to Petitioner’s asserted mental health condition, the Board also considered the totality of the circumstances to determined whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Board considered, among other factors, that Petitioner’s misconduct was mitigated by his preexisting PTSD symptoms that arose out of childhood abuse and neglect; that Petitioner may have been the victim of race-based harassment and therefore subjected to disparate treatment relative to his peers while serving in the Navy; that Petitioner’s misconduct was not violent and relatively minor in nature; that Petitioner’s CO specifically recommended that he receive a general (under honorable conditions) characterization of service; the letters of support from those who served with Petitioner supporting his contention that he endured disparate treatment and that his duty performance did not warrant an OTH characterization of service; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the review, the Board found that these mitigating circumstances outweighed Petitioner’s misconduct, and that Petitioner’s characterization of service should therefore be upgraded to general (under honorable conditions) in the interests of justice. The Board considered whether an upgrade to a fully honorable characterization of service was warranted under the circumstances, but determined that it was not given the nature and quantity of the misconduct that resulted in Petitioner’s discharge. RECOMMENDATION: In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner receive a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions),” and that the narrative reason for his separation was “Secretarial Authority.” That no further corrective action be taken. That a copy of this report of this record 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-titled matter. 5. The foregoing action of the Board is submitted for your review and action. Assistant General Counsel (Manpower and Reserve Affairs) Decision: Board Recommendation Approved (Upgrade to General) 3/18/2021 Assistant General Counsel (M&RA)