DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S COURTHOUSE ROAD SUITE 1001 ARLINGTON VA 22204-2490 Docket No: 733-18/1229-13 NOV 14 2018 Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER Ref: (a) l0 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" Encl: (1) DD Form 149 (NR20180000733) (2) DD Form 149 (NR20130001229) (3) Case summary w/service record excerpts (4) Medical Service Corps Officer, Advisory Opinion dtd 28 Jun 18 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting reconsideration of his previously denied request for correction to his Certificate of Release or Discharge from Active Duty (DD Form 214) seeking an upgrade to his discharge characterization from under other than honorable to honorable. Petitioner previously petitioned the Board for corrective action, enclosure (2), but the Board determined relief was not warranted. Enclosure (1) was reconsidered in accordance with Board of Correction of Naval Records procedures that conform to Lipsman v. Secretary of the Army, 335 F.Supp.2d 48 (D.D.C. 2004). Enclosures (1) through (4) apply. 2. The Board, consisting of , , and , reviewed Petitioner's allegations of error and injustice on 24 September 2018, 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 applicable statutes, regulations, and policies, and the Advisory Opinion (AO). 3. The Board, having reviewed all the facts ofrecord 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 and began a period of active duty on 14 January 1985. Petitioner states that in October 1986, he consulted with a private physician and learned that he tested positive for Human Immunodeficiency Virus (HIV). d. On 3 December 1986, Petitioner received nonjudicial punishment (NJP) for two specifications of failure to obey a lawful order. On 13 January. 1987, Petitioner received a second NJP for a IO-minute period of unauthorized absence (UA), disrespect toward a petty officer, and false official statement. On 10 February 1987, Petitioner received his third NJP for four instances of UA ranging from 10 minutes to 2 hours, disrespect and failure to obey a lawful order. e. Petitioner's record contains a medical entry dated 11 February 1987, which states "HIV Disease." f. On 20 February 1987, Petitioner was notified of administrative separation proceedings against him on the basis of a pattern of misconduct. g. Petitioner was discharged from the Navy on 30 March 1987, on the basis of a pattern of misconduct, and received an other than honorable characterization of service and a reentry (RE) code ofRE-4. h. Petitioner requests an upgrade to his other than honorable characterization of service on the basis of error and injustice and contends that during the time of his military service, he was suffering from unrecognized Post-Traumatic Stress Disorder (PTSD) that resulted from learning of his HIV diagnosis. Petitioner states he was traumatized by the dehumanizing harassment that he was exposed to during his time in the Navy. He provides letters of support with his application that note he was different after he returned from the military and that recalled to others that he was singled out, persecuted, and harassed since around the time he tested positive for HIV. i. As part of the review process, a Medical Service Corps Officer reviewed Petitioner's assertions and the available records and issued an AO that concluded that Petitioner likely did experience symptoms consistent with PTSD during his time in the Navy and that his misconduct can be attributed to PTSD. j. The Board, in its review of Petitioner's entire record and application, carefully weighed all potentially mitigating factors, such as the Petitioner's contention that he suffered from PTSD following his diagnosis with HIV. Petitioner's assertion was fully and carefully considered by the Board in light of references (b)-(d). The Board also reviewed the supporting information submitted by Petitioner and the information reflected in Petitioner's service record about his active duty performance. MAJORITY CONCLUSION: The majority concurred with the conclusions of the AO and determined that Petitioner's misconduct was mitigated by his mental health condition at the time of his military service and is entitled to full relief. In view of the above, the majority recommends the following corrective action. MAJORITY RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged with an honorable characterization of service, a narrative reason of "Secretarial Authority," a separation authority of"MILPERSMAN 1910-164," and an SPD code of" JFF." 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 19 January 2018. MINORITY CONCLUSION: The minority concurred with the conclusions of the AO and determined that Petitioner's misconduct was mitigated by his mental health condition at the time of his military service. In light of references (b)-(d) and in consideration of the nature of Petitioner's misconduct, the minority found that Petitioner is entitled to partial relief with respect to an upgrade to his discharge characterization. The minority determined that based on Petitioner's three NJPs and in consideration of his medical diagnosis, he likely would have received a general discharge. The minority also noted that a Petitioner may have also sought a voluntary discharge due to his medical condition, which likewise could have resulted in a general characterization of service. In view of the above, the minority recommends the following corrective action. MINORITY RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged with a general (under honorable conditions) characterization of service, a narrative reason of "Secretarial Authority," a separation authority of "MILPERSMAN 1910-164," and an SPD code of "JFF." 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 19 January 2018. 4. It is certified that a quorum was present at the Board' s review anq deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter. 5. The foregoing action of the Board is submitted for your review and action. Executive Director