DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10356-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) 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 (c) 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 (d) 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 (e) USD Memo, “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,” of 25 August 2017 Encl: (1) DD Form 149 (NR20180007119) w/attachments (2) BCNR Advisory Opinion, NR20180010356 of 29 Aug 19 1. Pursuant to reference (a), Petitioner, a former commissioned officer of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting a DD Form 214 reflecting an honorable characterization of service for his initial three-years of active-duty service. Petitioner also contends that he suffered from undiagnosed, service-connected post-traumatic stress disorder (PTSD) that mitigated the misconduct for which he was ultimately dismissed from the Navy. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 21 November 2019 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 enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies. 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 regulation within the Department of the Navy. b. Although the enclosure was not filed in a timely manner, the Board determined that it is in the interest of justice to review the application on its merits. c. Petitioner was commissioned in the Navy and began a period of active service on 6 November 1999. Petitioner’s urine collected as part of a unit sweep urinalysis tested positive for THC (marijuana) on 2 April 2007. He was charged with wrongful use of a controlled substance and offered non-judicial punishment (NJP). Petitioner exercised his right to refuse NJP, and the charge was referred to a general court-martial (GCM) comprised of officer members. On 2 August 2007, contrary to his pleas, Petitioner was found guilty by GCM of wrongful use of a controlled substance (marijuana). He was sentenced to dismissal from the naval service. Petitioner’s defense consisted of good military character evidence from numerous officers. Petitioner also asserted the defense of innocent ingestion—that he tested positive for THC because he had ingested products containing hemp-seed oil. According to Petitioner, he ingested hemp-seed oil products for their omega-3 and omega-6 fatty acids to assist with lowering his high cholesterol. d. Following completion of the post-trial appellate review process in his case, Petitioner’s discharge was approved and ordered executed. Home on appellate leave, he was dismissed from the Navy on 15 December 2009. e. In enclosure (1), Petitioner requests that he be issued a DD Form 214 to reflect his honorable service prior to his dismissal. He contends that there were at least two such periods, and that he did not receive a DD Form 214 reflecting honorable service for either his initial three-year obligation or for any subsequent periods of honorable service. f. Petitioner stated he took an operational billet in 2006 with the , where he helped coordinate MEDEVAC’s in , . Petitioner stated he experienced exposure to severe human carnage and began to have problems sleeping and functioning. Petitioner contended that, during this deployment, he began to exhibit classic symptoms of post-traumatic stress disorder (PTSD). Petitioner argued that PTSD was a possible reason for his difficulties, and that, after he was dismissed, he sought help through the VA. Petitioner stated that the VA diagnosed him with severe PTSD and considered him 100% disabled, and that he has been on medication and undergoing treatment for the last 6 years. g. As part of the Board’s review, a Medical Corps Officer (MCO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records and provided the Board an AO dated 29 August 2019 (enclosure (2)). In the AO, the MCO noted that Petitioner did not submit medical documentation with evidence of any mental health diagnoses, including PTSD. The MCO opined that there was insufficient evidence to attribute Petitioner’s misconduct to a service-connected mental health condition. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request merits partial relief, given the totality of the circumstances. Notwithstanding the corrective action recommended below, the Board did not believe that Petitioner suffered from service-connected PTSD at the time of his positive urinalysis. The Board observed that no active-duty medical records support his PTSD contention, and noted that Petitioner did not provide any VA medical documentation to substantiate any mental health diagnoses. Additionally, in accordance with the published guidance as outlined in references (c) through (e), the Board gave liberal and special consideration to his record of service and his contentions about any traumatic or stressful events he experienced and their possible adverse impact on his service. However, even under the liberal consideration standard, the Board still concluded that Petitioner did not suffer from any type of PTSD while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of his discharge. In the absence of documented medical evidence of PTSD, the Board was not convinced by Petitioner’s statement or the supporting witness declaration included with his petition. The Board noted that active-duty commissioned officers do not receive a DD Form 214 until they resign, retire, or are otherwise voluntarily and/or involuntarily separated from the Navy. Upon such separation, the DD Form 214 will cover and encompass all continuous active-duty service. As a result, Petitioner would not have received a DD Form 214 at the completion of his initial three-year obligation, or after finishing any other incremental periods of service or tours of duty. All such active-duty service would be included on one DD Form 214 covering the entire 10-plus years of his continuous active service. The Board unequivocally concurred with the GCM’s findings. The Board noted, however, that although it cannot set aside a GCM conviction, it may grant clemency in the form of changing a characterization of service, even one awarded by a court-martial. Accordingly, the Board reviewed Petitioner’s application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose of reference (b) (USD Memo) is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to . . . the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards should also consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, Petitioner’s request only merits partial relief. After considering the most relevant factors from the USD Memo as applied to Petitioner’s case, including his character reference letter, the Board concluded that Petitioner did not present a compelling case for full requested relief. However, the Board did agree that the relative severity of some misconduct can change over time, especially in the context of marijuana use. While still unlawful in the military today, marijuana use may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago. The Board observed that Petitioner exercised his right to refuse NJP and elected to be tried by a court-martial composed of officer members. In doing so, this strategic decision drastically escalated his potential maximum punishment, and subjected him to having a criminal conviction on his permanent record. Ultimately, the Board determined that, from purely a sentence appropriateness standpoint, Petitioner’s dismissal was unduly harsh given the one-time marijuana use involved, the lack of any other derogatory matters in his record, and his overall meritorious service, including overseas deployments in support of Operation . That being the case, and purely as a matter of clemency, the Board concluded that no useful purpose is served by continuing to characterize Petitioner’s service with a dismissal. However, notwithstanding the relief granted below, the Board did not believe that Petitioner should receive an honorable characterization. In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. RECOMMENDATION: That Petitioner’s type of separation be changed to “Discharged,” the character of service be changed to “General (Under Honorable Conditions),” the separation authority be changed to “SECNAVINST 1920.6C; MPM 1611-010 & 1920 (series),” the separation code be changed to “JFF,” the reentry/reenlistment code be changed to “N/A,” and the narrative reason for separation remain “Secretarial Authority.” That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 27 September 2018. 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. 1/28/2020