Docket No: 3526-18 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, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD,” of 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 TBI,” of 24 February 2016 (d) PDUSD 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Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” of 25 August 2017 (e) MPN 1910-122 (repealed) Encl: (1) DD Form 149 with attachments (2) Advisory Opinion, MLCS Docket No: NR20180003526 of 29 Oct 18 (3) letter of 13 Nov 18 (4) Updated Advisory Opinion, MLCS Docket No: NR20180003526 of 7 Dec 18 (5) Updated Advisory Opinion, MLCS Docket No: NR20180003526 of 1 Jul 19 (6) letter of 5 Aug 19 (7) Updated Advisory Opinion, MLCS Docket No: NR20180003526 of 12 Aug 19 (8) letter of 23 Aug 19 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted sailor, filed enclosure (1) with this Board requesting his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 29 August 2019, and, pursuant to its regulations, determined the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of relevant portions of his naval service records, applicable statutes, regulations, policies, and the enclosures including the advisory opinions (AO) from a qualified mental health provider and rebuttal responses submitted by the Petitioner through counsel. 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 review the application on its merits. c. Petitioner enlisted in the Navy on 24 June 1987. He was enlisted as a Category IV recruit due to his Armed Forces Qualification Test (AFQT) score of 27. On 6 November 1987, he received nonjudicial punishment (NJP) for failure to obey an order by being in the enlisted club while in a duty status and an unauthorized absence (UA) of ten minutes. On 13 April 1988, he received a second NJP for a 13-minute UA. On 23 June 1988, he received a third NJP for a 22-day UA which included missing ship’s movement. On 17 March 1989, he received a fourth NJP for a 5-day UA and willfully disobeying a lawful order on two occasions. On 9 July 1989, he received a fifth NJP for failing to remain awake while serving as a lookout. On 17 July 1989, he received a sixth NJP after willfully disobeying an order from an officer to “be quiet”. On 4 March 1990, he received a seventh NJP for three periods of UA totaling eight days. On 14 March 1990, he received an eighth NJP for failing to go to restriction muster on four occasions. On 5 April 1990, he received a ninth NJP for failing to go to restriction muster on three occasions and leaving his place of duty without authority. d. From 16 April 1990 to 10 May 1990, Petitioner was observed by psychiatry following a car accident that was a suspected suicide attempt. Petitioner denied suicidal ideation upon evaluation. He was diagnosed with organic mental disorder, not otherwise specified-resolved; passive aggressive and antisocial personality features; and borderline intellectual functioning, which was determined to be consistent with past testing and not the result of head trauma. Of note, Petitioner’s medical record states, “At the time of admission, he had been awarded an other than honorable discharge and was pending separation for a pattern of misconduct. The patient was appealing this decision to an administrative discharge board.” e. On 8 June 1990, Petitioner was involuntarily retained in the naval service for the purpose of completion of disciplinary action. On 10 July 1990, he received yet another NJP for failing to report to pre-trial restriction muster on 21 occasions. On 31 July 1990, he was convicted by special court-martial (SPCM) for failure to go to restriction muster on 13 occasions, two UA periods of thirty minutes each, and possessing two Armed Forces identification cards, both belonging to him. He was sentenced to 60 days confinement, forfeiture, and a bad conduct discharge (BCD). On 29 October 1990, he received an eleventh NJP for failure to obey a lawful order to get out of his rack. On 11 January 1991, he received another NJP for a 22-day UA, failure to obey an order, and resisting arrest. After much delay in the post-trial review process, the BCD was subsequently approved at all levels of review, and, on 22 February 1993, he was discharged. f. Petitioner, through counsel, contends he was never suitable for naval service by virtue of his significant intellectual limitations and his early symptomology of a serious mental illness. Further, he contends clemency is warranted pursuant to reference (d). Specifically, Petitioner contends the following: 1) Petitioner was diagnosed during service as having borderline intellectual functioning and a personality disorder. He has since been diagnosed by the Department of Veterans Affairs (VA) as suffering from service-connected Post-Traumatic Stress Disorder (PTSD) and by a non-VA provider as suffering from schizophrenia. 2) Petitioner contends his condition and this experience existed during service. Specifically, symptoms which were diagnosed in the Navy as “problematic personality features” have now progressed to “full blown schizophrenia, paranoid type”. It is therefore likely Petitioner was demonstrating early symptoms of his schizophrenia while in service. 3) Petitioner contends his difficulties in complying with the discipline of military service were in evidence from the beginning of his naval service; it is likely that his intellectual limitations, difficulty in adapting to novel circumstances, and early psychotic symptomology played a part. 4) Petitioner contends the condition/experience outweighs the discharge. Specifically, he contends the misconduct that led to his SPCM was a pattern of not being where he was supposed to be on time and improperly possessing two copies of his own identification card. None of the misconduct involved violence or moral turpitude. g. Additionally, Petitioner contends his BCD was improperly executed: the last step in issuing a BCD pursuant to judgment of a SPCM is the order for execution and his BCD was not executed by a General Court Martial Convening Authority. h. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions as well as available records and provided the unfavorable 29 October 2018 AO, enclosure (2). The AO concluded that, in the absence of VA records and complete civilian treatment records, Petitioner’s post-service diagnosed Post Traumatic Stress Disorder (PTSD) cannot be attributed to military service because the inconsistencies between the service record and the traumatic events which led to the civilian diagnosis are too great. The AO further stated the repetition of behavior seemed to be “more than a misunderstanding of where he was supposed to be” and “more deliberate than avoidance behavior associated with PTSD”. Further, the AO stated the “repeated misconduct, despite multiple instances of counseling and NJP, seems to be most consistent with characterological features, described in-service as passive-aggressive or antisocial personality features and post-service as a history of severe anger management difficulties.” Based on the available evidence, the AO author stated it was her considered medical opinion that Petitioner’s misconduct cannot be attributed to PTSD or a mental health condition. i. In his rebuttal of 13 November 2018, enclosure (3), Petitioner stated he had “no additional information to provide relative to the issue of PTSD” but that he believed the AO was “clearly erroneous as regards the issue of a mental health condition.” Petitioner contended a personality disorder is a recognized mental health condition and, until fairly recently, reference (e) and its predecessors “specifically directed separation for the convenience of the government when a personality disorder which interfered with performance was diagnosed.” j. In the 7 December 2018 AO, enclosure (4), the author stated Petitioner’s contention that a personality disorder is a recognized mental health condition was correct, but her opinion remained the same: there is insufficient evidence to attribute Petitioner’s misconduct to PTSD. k. After initial review of Petitioner’s request for relief, the Examiner determined an additional AO was needed to address Petitioner’s diagnoses of schizoaffective disorder and schizophrenia. The 1 July 2019 AO, enclosure (5), found insufficient information regarding Petitioner’s civilian diagnoses to provide an opinion regarding the potential presence of these disorders during his military service. The AO further explained that, “while it is true that symptoms of schizophrenia typically emerge in late adolescence or early adulthood, during the timeframe Petitioner was in the military, there is insufficient information regarding his medical record to determine if he was experiencing symptoms”. Even after being evaluated while in-service during his one-month psychiatric hospitalization, the AO stated there is “no evidence of response to internal stimuli or other behavior that would be consistent with a diagnosis of schizophrenia or schizoaffective disorder.” l. In his rebuttal of 5 August 2019, enclosure (6), Petitioner’s counsel reiterated that the standard of proof under reference (d) is whether Petitioner’s schizophrenia may have existed at the time of discharge. Petitioner further contended the AO did not address the issue of overlap of symptoms between a personality disorder with those of schizophrenia and schizoaffective disorder. Reference (d) stated that evidence supporting more than one diagnosis will be liberally construed as supporting a mental health diagnosis. Petitioner further stated, “Unfortunately, the records for do not enumerate the symptoms that caused the assignment of a personality disorder diagnosis. However, as a general proposition, there can be overlap.” Additionally, Petitioner contended that the updated AO did not address whether the in-service personality disorder and borderline intellectual functioning contributed to Petitioner’s inability to conform to the standards of military conduct. Lastly, Petitioner contended his offenses were numerous but were all minor. m. As a surrebuttal to the enclosure (6), the qualified mental health provider commented in a 12 August 2019 AO that, due to the absence of any noted psychotic process or response to internal stimuli during the one-month psychiatric hospitalization, “it was less likely that Petitioner was experiencing emerging symptoms of schizophrenia or schizoaffective disorder at that time.” The AO further stated that “while it is possible that Petitioner’s borderline intellectual functioning could have contributed to his inability to conform to the standards of military conduct, the repetitive nature of his offenses suggests that his misconduct was not simply due to a misunderstanding of the rules of military life and is more consistent with characterological traits described by his personality disorder diagnosis.” See enclosure (7) n. In his letter of 23 August 2019, enclosure (8), Petitioner’s counsel argues the AO continues to rely upon the fact that no evidence of response to internal stimuli appears in the record of his psychiatric hospitalization but contends that the mental health provider is “certainly aware that many patients with schizophrenia do not present with psychotic or psychosis-like symptoms during their disease progression but instead many patients evidence functional and cognitive decline during the prodromal period, which can only be diagnosed retrospectively. The Petitioner also contended that the medical record from Petitioner’s hospitalization does not enumerate the alternative personality disorder traits but does specifically note that neurological testing revealed “borderline intellectual functioning” and “an extremely poor ability to function in a new or novel setting.” Petitioner argued that “such poor functioning is not symptomatic of a personality disorder,” and therefore the AO’s conclusion that his behavior “resulted from personality traits rather than his cognitive difficulty is completely unsupported.” CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. The Board reviewed his application under the guidance provided in references (b) through (d). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards 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, since 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. The Board, applying liberal consideration and relying upon Petitioner’s diagnosed mental health conditions, determined there was sufficient evidence to support a finding that Petitioner’s mental health condition mitigated the misconduct that led to his BCD. The Board specifically noted Petitioner’s diagnosis of borderline intellectual functioning and concluded Petitioner’s AFQT scores do not reflect an individual that should have been recruited. The Board also determined the more appropriate course of action would have been administrative separation much earlier in Petitioner’s enlistment after dealing with the burden of repeated minor misconduct. Further, noting the command’s specific decision to extend Petitioner’s enlistment in order to take legal action, the Board concluded the SPCM and resultant BCD were harsh consequences for Petitioner’s minor misconduct, especially in light of his diagnosed personality disorder and borderline intellectual functioning. The Board, applying liberal consideration, determined Petitioner’s mental health conditions mitigated his misconduct, clemency was warranted, and the appropriate characterization of service for Petitioner’s service was general, under honorable conditions (GEN). Additionally, in the interest of justice, the Board concluded Petitioner should receive relief in the form of corresponding changes to his narrative reason for separation, separation code, and separation authority. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner’s Naval record be corrected to show that on 22 February 1993, he was discharged with a “general, under honorable conditions” characterization of service, under “MILPERSMAN 1910-164”, the narrative reason for separation was “Secretarial Authority”, and “JFF” was the separation code. 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 25 April 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 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.