DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3250-21 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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 (2) BCNR, Advisory Opinion of 23 Aug 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 his discharge to reflect an upgrade to his characterization of service. Enclosures (1)-(2) and references (a) through (e) apply. 2. The Board consisting of Ms. Mr. and Mr. reviewed Petitioner’s allegations of error and injustice on 27 August 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 Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel 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, 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 22 October 2002. On 15 September 2003, Petitioner was placed in pretrial confinement. On 6 October 2003, after consulting with counsel, Petitioner submitted a request for an other than honorable discharge in lieu of trial and in that request, admitted guilt to violating the Uniform Code of Military Justice, Article 86 (unauthorized absence from 26 July to 13 August 2003, and from 16 August to 15 September 2003), and Article 115 (malingering, did feign mental derangement on 8 and 14 August 2003, for the purpose of avoiding duty, and on 16 September 2003, did feign mental derangement to avoid his duty). d. On 8 October 2003, Commanding Officer , recommended that Petitioner’s request for an other than honorable discharge in lieu of trial be approved. e. On 15 October 2003, Commander , determined Petitioner’s request for an other than honorable discharge should be granted. Petitioner was discharged from the Navy on 22 October 2003, in lieu of trial by court martial, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. f. In his application to the Board, Petitioner requested an upgrade to his other than honorable discharge. Petitioner stated that he was demonstrably mentally ill and coerced by his judge advocate to “take the easiest way out of the situation” so the judge advocate could avoid having to work on Petitioner’s case. Petitioner provided post-discharge medical records to include a diagnosis of bipolar disorder as early as 2006, and stated that his discharge for malingering has no merit. Petitioner asserted that his absence from duty was directly related to his mental health diagnosis, specifically that he was suffering from bi-polar disorder. He also contended that during his time in the Navy he suffered from blackouts, hearing voices, insomnia, depression, mania, stress, and suicidal thoughts. Petitioner stated that he is a single parent to a four-year-old son, is attending college with the goal of becoming a Doctor of Dental Surgery, is actively involved in the Greater Islamic Society of and has received Social Security Benefits for bi-polar disorder. g. As part of the review process, a Mental Health Advisor reviewed Petitioner’s contention that he suffered from a mental health condition and as such should receive a better characterization of service. The Advisory Opinion found that Petitioner’s post-discharge diagnosis occurred so close in time to his discharge from military service that the diagnosis lends credibility to his contention he was experiencing mental health symptoms while in-service. Based on the available evidence, the Advisory Opinion concluded that there is evidence that Petitioner exhibited behaviors associated with a mental health condition during his military service and his misconduct may be mitigated by his mental health condition. CONCLUSION The Board reviewed Petitioner’s request in accordance with references (b) through (e), and carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in his case in accordance with the Wilkie Memo. The Board substantively concurred with the conclusions of the Advisory Opinion, and determined that Petitioner provided sufficient evidence to establish that he suffered from a mental health condition while he was in the Navy that mitigated his misconduct of UA and malingering. Upon review and consideration of all the evidence of record, and in light of reference (e), the Board found that Petitioner’s request warrants corrective action to include that Petitioner be granted an upgrade to his discharge characterization for other than honorable to general. The Board determined that while Petitioner’s mental health condition mitigated his misconduct, it did not completely absolve him of accountability. Based on the two periods of UA both of which covered more than two weeks of absence, and noting the three separated dates for which Petitioner admitted to malingering, the Board determined that an upgrade to a general only was appropriate. The Board found that in addition to an upgrade to Petitioner’s characterization of service to reflect an general discharge, he should receive a corresponding change to narrative reason for separation, his SPD code and separation authority. The Board concluded that Petitioner’s Certificate of Release or Discharge from Active Duty (DD Form 214) should be changed to reflect these changes. The Board noted that Petitioner’s application for correction indicates that he previously served under the name , with the social security number ending in 3342. Petitioner states that his current name is with a social security number ending in 6387. As Petitioner did not provide legal support for either a name change or a change to his social security number, the Board determined that corrective action on either matter within Petitioner’s military record is not appropriate at this time. In view of the above, the Board directs the following corrective action. RECOMMENDATION: That Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214)’s indicating that on 22 October 2003, he was discharged with a general (under honorable conditions) character of service, Secretarial Authority narrative reason for discharge, MILPERSMAN 1910-164 separation authority, and JFF separation program designator. That no further changes be made to Petitioner’s record. 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. 9/15/2021 Executive Director