DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 11084-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 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 Post Traumatic Stress Disorder” (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) USD 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) USECDEF 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 with attachments (2) Mental Health Condition Advisory Opinion, Docket No: NR20180011084 of 9 Sep 19 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 30 January 2020, 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 his medical records, applicable statutes, regulations, policies, an advisory opinion (AO) from a mental health provider, and the Petitioner’s materials submitted in rebuttal to the AO. 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 interests of justice to review the application on its merits. c. Petitioner initially enlisted in the Navy and began a period of active service on 21 December 1999. On 17 February 2000, Petitioner was diagnosed with an occupational problem at Naval Hospital . On 16 October 2001, the Petitioner went to non-judicial punishment (NJP) for unauthorized absence, and his command subsequently issued him a Letter of Instruction documenting unsatisfactory performance. On 9 October 2002, the Petitioner went to NJP for disorderly conduct, and the command subsequently issued him a Letter of Reprimand. d. On 24 October 2002, the Petitioner underwent another mental health evaluation. He was diagnosed with a personality disorder, not otherwise specified. e. On 22 November 2002, Petitioner’s command issued him a “Page 13” counseling warning for: disrespect to senior petty officers, being late for muster, and demonstrated poor watch standing. On 18 July 2003, the Petitioner was issued another “Page 13” counseling warning for: disrespect to senior petty officers, less than exemplary job performance, and for continuing to have altercations with shipmates disruptive to the ship’s operations. On 8 October 2003, the Petitioner went to NJP for dereliction in the performance of his duties. f. On 16 October 2003, Petitioner’s command initiated an administrative action to separate Petitioner for misconduct due to a pattern of misconduct. The Petitioner consulted with counsel and elected in writing to waive his right to submit a written statement for consideration by the separation authority. The Petitioner did not have enough years of service to request an administrative discharge board, and the least favorable discharge he faced was a general (under honorable conditions) (GEN) characterization of service. Ultimately, on 24 November 2003, the Petitioner was separated from the Navy with a GEN characterization of service. On 21 July 2006, the Naval Discharge Review Board determined that the Petitioner’s discharge was proper as issued and that no change was warranted. g. On 21 July 2014, the Veterans’ Administration (VA) determined that Petitioner had a service-connected bipolar disorder, and assigned him a 100% disability rating. In short, Petitioner contended that he was suffering from a mental health condition during his military service. The Petitioner argued that the Board must view his mental health condition and related symptoms as a mitigating factor to the misconduct leading to his separation and upgrade his discharge. h. As part of the review process, a Navy Medical Officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records. The NMO issued an AO dated 9 September 2019, observing that Petitioner has a mental health disorder (bipolar I disorder), that the VA has determined was aggravated during his military service. The NMO noted that there is supporting evidence in Petitioner’s service record of behavior consistent with bipolar disorder symptoms of grandiosity and irritability in his repeated conflicts with authority. The NMO observed that these behaviors were a chronic problem throughout his military service, which was consistent with the VA’s determination. The NMO concluded by opining that there is evidence to attribute his 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 warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in reaching fair and consistent results in these difficult cases.” The memorandum describes the difficulty veterans face on “upgrading their discharges based on claims of previously unrecognized” Mental Health Conditions. The memorandum further explains that because Mental Health Conditions were not previously recognized as a diagnosis at the time of service for many veterans, and diagnoses were often not made until after service was completed, veterans were constrained in their arguments that Mental Health Conditions should be considered in mitigation for misconduct committed, or were unable to establish a nexus between a Mental Health Condition and the misconduct underlying their discharge. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify 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,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s mental health-related condition as a causative factor in the misconduct contributing to his discharge and characterization was not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board still unanimously concluded that Petitioner’s original GEN discharge under these circumstances remains the appropriate characterization at this time. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable characterization of service. The Board did not believe that the Petitioner’s record was otherwise so meritorious that he deserved an honorable discharge. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is still appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, given the totality of the circumstances and purely as a matter of clemency, that the Petitioner only merits a GEN characterization of service and no higher, and that the reentry/reenlistment code should remain “RE-4.” RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall 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 23 November 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. 2/17/2020