DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10654-19 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USN, XXX-XX- Ref: (a) 10 U.S.C. §1552 (b) 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 (c) USD Memo, “Guidance to MilitaryDischarge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) DD Form 214 (3)NAVPERS 1070/613, Administrative Remarks, dtd 23 Feb 94 (4)NAVPERS 1070/613, Administrative Remarks, dtd 23 February 1994 (5) Memo, subj: Evaluation for Administrative Action, dtd 3 March 1994 (6) Msg, subj: Recommendation for Separation due to Misconduct due to the Commission of a Serious Offense and due to a Personality Disorder ICO [Petitioner], dtg 091601Z Mar 94 (7)NAVPERS 1070/609, Enlisted Performance Record (8) Advisory Opinion of 15 January 2021 (9)Advisory Opinion Response Brief 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by upgrading his character of service to general (under honorable conditions) and changing the narrative reason for his discharge “Secretarial Authority.” 2. The Board reviewed Petitioner’s allegations of error or injustice on 17 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, to include references (b) and (c). 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Before applying to this Board, the 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 consider Petitioner’s application on its merits. c. The Petitioner reenlisted in the Navy and began a period of active duty on 9 October 1987. Prior to this period of active duty, Petitioner had almost four years of active service. See enclosure (2). d. On 23 February 1994, Petitioner received nonjudicial punishment (NJP) for a period of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ), and for failing to pay a just debt(s), in violation of Article 134, UCMJ. See enclosure (3). On that same day, Petitioner was counseled for his failure to pay his debts. He was informed that he was being retained in the naval service, but warned that any further deficiencies in his performance and/or conduct may result in disciplinary action and processing for administrative separation. This counseling statement also informed Petitioner that all deficiencies and/or misconduct, both prior to and subsequent to the date of the counseling, would be considered in a future administrative separation decision. See enclosure (4). e. Upon completion of the NJP proceedings, Petitioner reportedly threated to kill several members of his chain of command and then himself. See enclosure (6). On 24 February 1994, Petitioner was admitted to the psychiatric ward at the Base Medical Center due to these threats. After a week-long evaluation, Petitioner was diagnosed with Adjustment Disorder with mixed emotional features and Personality Disorder (not otherwise specified) with passive-aggressive and antisocial traits. The staff psychiatrist advised that Petitioner would be at risk of harm to himself or others, and will likely require additional medical care and/or disciplinary action, if he was retained on active duty, and recommended separation as expeditiously as possible. See enclosure (5). f. By memorandum dated 8 March 1994, Petitioner was notified that he was being processed for administrative separation by reason of a personality disorder and for commission of a serious offense, as evidenced by his 23 February 1994 NJP. Petitioner subsequently waived his right to an administrative separation board. On 9 March 1994, Petitioner’s commanding office recommended that he be separated under other than honorable (OTH) based upon his pattern of chronic indebtedness and his diagnosed personality disorder. See enclosure (6). g. On 24 March 1994, Petitioner was discharged from the Navy under OTH conditions for misconduct. See enclosure (2). h. Petitioner’s final performance average at discharge was 3.45, despite the misconduct referenced above. See enclosure (7). i. Petitioner asserts that the circumstances surrounding his NJP brought about a behavioral and mental breakdown, resulting in his reported homicidal and suicidal comments. This was not the first time that various stressors combined to produce such a result, as Petitioner reports that he had been hospitalized for a similar reaction in 1989. He asserts that the discharge was both improper and inequitable because the timeline suggests that the misconduct served as a pretext to separate him under OTH conditions for a personality disorder. Further, even if the misconduct was not a pretext, he was never provided the opportunity to rehabilitate from his chronic indebtedness after being counseled, as required by Navy regulations. Petitioner also asserts that the indicators of his personality disorder were apparent long before February 1993, and if properly diagnosed he would have already been discharged for the convenience of the government with a characterization of service of honorable or general (under honorable conditions). Finally, Petitioner contends that his discharge characterization was unjust because his service records demonstrate that he worked hard to conform to Navy standards, and performed at a high level for most of his 10 years in the Navy. j. Due to the mental health issues raised, Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for theBoard’s consideration. The AO noted that Petitioner’s in-service records do contain evidence of a mental health issue for which he received treatment. The AO, however, found that the preponderance of the available evidence fails to establish that Petitioner’s misconduct was mitigated by his mental health condition. See enclosure (8). k. In response to the above referenced AO, Petitioner reiterated his arguments from enclosure (1), and suggested that the AO was irrelevant because he never alleged that his misconduct was mitigated by his mental health issues. Rather, his argument was that the misconduct served as a pretext to separate Petitioner under OTH conditions for his mental health conditions. See enclosure (9). MAJORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Majority of the Board determined that relief is warranted in the interests of justice. Due to the mental health issues raised in this application, the Majority reviewed Petitioner’s application in accordance with the guidance of reference (b). Accordingly, the Majority applied liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his conduct. Even applying liberal consideration, however, the Majority concurred with the AO conclusion that there is insufficient evidence to establish that Petitioner’s mental health condition mitigated his misconduct. However, the Majority also concurred with Petitioner’s rebuttal to the AO that this conclusion is essentially irrelevant to this case, as Petitioner never asserted such mitigation. As discussed below, the injustice in Petitioner’s case came from the circumstances and timing of Petitioner’s mental health diagnosis relative to his misconduct. The Majority notes that Petitioner’s command was required to include all existing bases for separation when it initiated Petitioner’s separation process and that Petitioner’s misconduct did, indeed, constitute the commission of a serious offense. Accordingly, the Majority found no technical error in Petitioner’s discharge. However, the Majority found that the unfortunate circumstances and timing of Petitioner’s mental health diagnosis relative to his misconduct resulted in an injustice by imposing an OTH characterization of service that was neither warranted nor likely to have been imposed but for the timing. On 23 February 1994, Petitioner was notified that he was being retained despite his misconduct, and warned that further misconduct may result in his administrative separation. He was almost immediately thereafter hospitalized for psychiatric evaluation after making reportedly homicidal and suicidal threats in response to his NJP. This evaluation resulted in his personality disorder diagnosis and recommendation for immediate separation, which in turn resulted in an administrative separation action that incorporated both the personality disorder and the misconduct. The Majority determined that, but for the mental health incident that resulted in his hospitalization and diagnosis, Petitioner likely would not have been separated. At the very least, he would have been afforded the opportunity to rehabilitate and improve his deficiencies. The timing deprived Petitioner of this opportunity. Further, the Majorityfound no evidence that Petitioner’s threats, apart from the resulting mental health diagnosis, served as a basis for Petitioner’s separation. Accordingly, the Majority determined that Petitioner’s OTH characterization of service for misconduct which the command had already determined did not to warrant his separation constituted an injustice that warrants relief. The Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Board considered, among other factors, that the true proximate cause of Petitioner’s administrative separation was his personality disorder diagnosis; that Petitioner most likely would have been separated with an honorable characterization of service had he been separated only for his diagnosed personality disorder rather than for the misconduct which the command had already determined did not independently warrant his separation; Petitioner’s assertion that he had previously demonstrated indications of his personality disorder, and would likely have already been separated with a more favorable characterization of service if it had been properly diagnosed; that Petitioner’s ten-year career in the Navy was otherwise meritorious, as evidenced by favorable evaluations and performance ratings warranting an honorable characterization of service; the relatively minor nature of the misconduct for which Petitioner was separated; and the passage of time since Petitioner’s discharge. Based upon this review, combined with its determination that Petitioner’s OTH characterization of service represents an injustice as discussed above, the Majority determined that the interests of justice warrant an upgrade of Petitioner’s characterization of service to fully honorable. This is more relief than Petitioner requested, but the Majority believed it to be appropriate because it is the characterization of service that Petitioner most likely would have received, given his performance ratings, but for the unfortunate timing of his mental health diagnosis relative to his misconduct. In the interests of justice, the Majority also determined that Petitioner’s narrative reason for separation should be changed to “Secretarial Authority.” MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval service record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “Honorable,” that the narrative reason for his separation was “Secretarial Authority,” that his separation authority was “MILPERSMAN 1910-164,” and that his separation code was “JFF”; That Petitioner’s reentry code remain as “RE-4”; That no further changes be made to Petitioner’s record; That a copy of this report of proceedings shall be filed in Petitioner’s naval record. MINORITY CONCLUSION: The Minority of the Board concurred with the Majority conclusions discussed above, except for the determination that an upgrade of Petitioner’s characterization of service to fully honorable was warranted under the totality of the circumstances. In this regard, the Minority found that Petitioner’s separation was appropriately processed and that his misconduct did constitute the commission of a serious offense. The Minority found Petitioner’s OTH characterization of service to be unduly harsh given the totality of the circumstances, but not so much as to warrant an upgrade to fully honorable. Accordingly, the Minority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions). The Minority also concurred that Petitioner’s narrative reason for separation should be changed to “Secretarial Authority” in the interests of justice. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective action be taken on Petitioner’s naval service record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions),” that the narrative reason for his separation was “Secretarial Authority,” that his separation authority was “MILPERSMAN 1910-164,” and that his separation code was “JFF”; That Petitioner’s reentry code remain as “RE-4”; That no further changes be made to Petitioner’s record; That a copy of this report of proceedings shall be filed in Petitioner’s naval record. 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. The foregoing action of the Board is submitted for your review and action. ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Upgrade to Honorable)