Docket No: 9533-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD 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 Encl: (1) DD Form 149 with attachments (2) Advisory Opinion, MLCS Docket No:of 25 Jan 19 (3) Rebuttal to Advisory Opinion 1. Pursuant to reference (a), Petitioner, a former enlisted sailor, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 26 November 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 the enclosures, relevant portions of naval service records, applicable statutes, regulations, and policies, the enclosed advisory opinion (AO) from a mental health provider and the rebuttal documentation provided in response. 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 and began a period of active duty in the Navy on 28 July 1982. On 1 March 1983, he sustained massive head injuries while riding as a passenger on a motorcycle that crashed at high speed. As early as March 1984, Petitioner was seen by neurology for complaints of headaches subsequent to his head trauma. On 18 June 1984, he received non-judicial punishment (NJP) for a 1.5 hour unauthorized absence (UA) and wrongfully disobeying an order to report 30 minutes early. On 6 July 1984, he received a second NJP for possessing and discharging fireworks in his government quarters. In August 1984, while attending Alcohol Rehabilitation (ARD), he suffered a major motor seizure and was prescribed anti-convulsant medication. On 15 March 1985, Petitioner was convicted by special court-martial (SPCM) for four instances of UA, three of less than two hours each and one four hours in length, and two specifications of wrongful use of marijuana. He was awarded confinement, forfeiture of pay, and reduction in rank. In July 1985, he received written counseling after being late for work several mornings. On 22 August 1985, he received written counseling for an UA from his appointed place of duty for one hour and 15 minutes. Subsequently, he was notified of pending administrative separation action by reason of misconduct due to drug abuse and commission of a serious offense. After consulting counsel, he elected an administrative discharge board (ADB). On 7 October 1985, the ADB determined Petitioner had committed misconduct and recommended that he be separated with an other than honorable (OTH) characterization of service. His commanding officer concurred with the ADB and recommended that he be discharged with an OTH characterization of service. While awaiting determination from the discharge authority, Petitioner received NJP for willful disobedience. On 28 October 1985, the Chief of Naval Personnel recommended an OTH discharge and the Secretary of the Navy approved the recommendation. On 5 November 1985, the discharge authority directed Petitioner be discharged by reason of misconduct due to drug abuse with an OTH characterization of service. On 6 January 1986, he was discharged. d. Petitioner contends his discharge is inequitable because he was suffering from a Traumatic Brain Injury (TBI), post traumatic seizure disorder, and medical issues at the time of his misconduct. Specifically, he contends he had no misconduct prior to the injury but after the TBI, he exhibited significant behavioral symptoms. He further contends that as his behavioral symptoms became more acute and he was prescribed medication to combat them, his misconduct intensified resulting in repeated tardiness to work and substance use. Petitioner additionally contends his discharge was inequitable because current discharge policies are materially different than those that led to his discharge, and his service warrants a general, under honorable conditions (GEN), characterization of service. e. As part of the Board’s review, a mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 25 January 2019. The AO stated Petitioner was diagnosed with a mental health condition that today would be called alcohol use disorder, which can be attributed to military service. Additionally, the AO stated he was diagnosed with a personality disorder which cannot be attributed to military service. Further, the AO noted that Petitioner incurred a TBI during his military service and subsequently developed a seizure disorder. The medication prescribed to prevent seizures caused side effects which resulted in fatigue. The AO further noted evidence of multiple medical visits for treatment of headaches and Petitioner’s contention he used marijuana to treat the headaches but found the marijuana use more consistent with the diagnosed personality disorder. The AO concluded most of Petitioner’s misconduct could be attributed to his personality disorder but that there was evidence some of his misconduct, namely his repeated UAs, could be attributed to his seizure disorder and the side effects of the prescribed medication. The AO was forwarded to Petitioner for review and comment on 5 February 2019, and the rebuttal documentation submitted in response was submitted to the Board for consideration. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board reviewed the 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 TBI and mental health condition, determined that there was sufficient evidence to support a finding that Petitioner’s TBI and resultant medical condition mitigated his misconduct. The Board considered the contentions that Petitioner used marijuana to alleviate his persistent headaches caused by the TBI and his medication caused fatigue which resulted in repeated UAs of two to four hours. After consideration of all the factors, the Board determined that the misconduct that led to his discharge was mitigated by his TBI and mental health condition and warranted an upgraded characterization of service. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) indicating the characterization of service as “general, under honorable conditions.” 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 August 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.