Docket No: 958-20 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 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 , reviewed Petitioner's allegations of error and injustice on 19 March 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 the 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. Although enclosure (1) was not filed in a timely manner, the Board determined that it was in the interests of justice to review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active service on 26 May 1978. Petitioner’s pre-enlistment physical and medical history both noted no psychiatric or neurologic conditions or symptoms. d. Petitioner suffered two separate head injuries on active duty. The first head trauma occurred in a motor vehicle accident following “A” school, and the second head trauma occurred in July 1979 in Italy. The Petitioner was treated for post-concussion syndrome at military medical treatment facilities in both and following the second injury. e. The administrative separation (Adsep) documents are not in the Petitioner’s electronic service record. However, based on the information contained on the DD Form 214, the Board determined that Petitioner’s command initiated Adsep proceedings by reason of unsuitability on the basis of a diagnosed personality disorder of such severity as to render the Petitioner incapable of serving adequately in the naval service. The lowest eligible discharge characterization Petitioner could have received was General (Under Honorable Conditions) (GEN). Ultimately, on 11 September 1980 Petitioner was discharged from the Navy with a GEN discharge and assigned an RE-4 reentry code. The Board specifically noted on his DD Form 214 that the narrative reason for separation was “Unsuitability - Personality Disorders.” f. Based on his available service records, Petitioner’s overall conduct trait average assigned on his periodic performance evaluations during his enlistment was 2.93. Navy regulations in place at the time of his discharge required a minimum trait average of 3.0 in conduct (proper military behavior), to be consiered for a fully honorable characterization of service. g. In short, Petitioner contended that was dealing with a traumatic brain injury (TBI) he suffered as a direct result of his two head injuries. The Petitioner further contended that his TBI and resulting symptoms were misdiagnosed as a personality disorder. The Petitioner argued that his TBI was the proximate cause for any behaviors leading to his Adsep and GEN characterization of service. The Petitioner also provided VA documentation indicating he currently has a 90% disability rating for service-connected major depressive disorder, panic disorder, and TBI. h. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO on 24 February 2021. The MD initially determined that the Petitioner suffered from TBI stemming from his head injuries on active duty. The MD observed that Petitioner’s military records contained extensive clinical records being in July 1979 presenting symptoms including a loss of consciousness, anterograde/retrograde amnesia, persistent headaches, brief apneic episode, and photosensitivity. The MD noted that Petitioner’s command reported a change in Petitioner’s personality stating “he wasn’t the same after his head injury,” citing continuous headaches and decreased performance. The MD further noted that multiple medical and psychiatric providers determined Petitioner’s TBI and mental health conditions began in service and cited the head traumas and residual symptoms of TBI as documented in his service records. The MD concluded by opining that there was sufficient evidence that Petitioner exhibited behaviors and symptoms associated with TBI during his military service. CONCLUSION Upon review and liberal consideration of all the evidence of record and in light of the favorable AO and the documented service-connected disability determination, 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 determined that it would be an injustice to label one’s discharge as being for a diagnosed character and behavior disorder. Describing Petitioner’s service in this manner attaches a considerable negative and unnecessary stigma, and fundamental fairness and medical privacy concerns dictate a change. Accordingly, the Board concluded that Petitioner’s discharge should not be labeled as being for a mental health-related condition and that certain remedial administrative changes are warranted to the DD Form 214. Moreover, the Board concluded that the Petitioner’s TBI-related conditions and/or symptoms were the causative factors contributing to his misdiagnosis, Adsep, and characterization. The Board also observed that there is absolutely no misconduct or adverse counseling entries documented in Petitioner’s service record. Additionally, in light of the Wilkie Memo, the Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under GEN conditions, and that a discharge upgrade to “honorable” is appropriate at this time. 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 “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the reentry code be changed to “RE-1J.” That Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That Petitioner shall be issued a new Honorable Discharge Certificate. 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.