Docket No. 10932-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NA VAL RECORD OF FORMER , USN, XXX-XX- Ref: (a) Title 10 U.S.C. § 1552 (b) MILPERSMAN 1910-164 (c) MILPERSMAN 1910-146 (d) USD memo, "Guidance to Military Discharge 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 w/enclosures (2) NDRB Docket No. ND20-00264 (3) NA VPERS 1910/31 of 26 Jan 17 (4) CDR ltrof25Jul 17 (5) NAVPERS 1910/31 of 19 Jul 17 (6) Cmdr, ltr 1910 Ser 00/250 of 28 Jul 17 (7) Petitioner's FIRST ENDORSEMENT of 5 Aug 17 (8 Cmdr, SECOND ENDORSEMENT of 6 Sep 17 (9) Evaluation Report & Counseling Record of 16 Mar 17 to 27 Sep 17 (10) Supplemental Evaluation Report of 28 Sep 17 to 23 Mar 18 (11) Cmdr, THRID ENDORSEMENT of 5 Oct 17 (12) DV A Rating Decision of 11 Dec 18 (13) ASN (M&RA) ltr of 28 Jun 19 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 he be reinstated in the Navy until the date of his original End of Active Obligated Service (EAOS) with all appropriate back pay and allowances, to restore his Navy Enlisted Classifications (NEC) and designators as a Navy Sea Air Land (SEAL) member, and to upgrade his characterization of service. The Board noted that Petitioner's characterization of service had been upgraded by the Naval Discharge Review Board (NDRB) on 18 August 2020, and therefore did not consider this request. Enclosure (2). 2. The Board reviewed Petitioner's allegations of error and injustice on 28 January 2021 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 Petitioner's naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Petitioner entered active service on 15 August 2011 and he was separated on 23 March 2018, pursuant to reference (b), by reason of best interest of the service (BIOTS) with a General (under honorable conditions) characterization of service and a "RE-4" reentry code. c. Petitioner was suspected of wrongful use of marijuana on 12 November 2016 after an evening of heavy drinking with his SEAL team. On 14 November 2016, Petitioner took a urinalysis test for marijuana use. The test results were returned on 21 November 2016 and were negative for marijuana or any other controlled substances. d. On 21 November 2016, Petitioner was subject to a Disciplinary Review Board (ORB) chaired by five Master Chief Petty Officers, who recommended punitive action and removal of his SEAL NEC. e. A 23 November 2016 Preliminary Inquiry Report found that Petitioner and two others admitted to drinking heavily, but that they either denied using marijuana or did not know if they used marijuana. The Investigating Officer (10) noted that witness statements varied and statements changed during re-interview. The IO recommended Petitioner receive nonjudicial punishment (NJP). f. On 28 November 2016, Petitioner was notified of intent to impose NJP for violation of Article 112a, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana. Petitioner refused NJP, retained civilian counsel, and demanded trial by court-martial. g. On 26 January 2017, Petitioner was notified of Administrative Separation (ADSEP) processing by reason of Drug Abuse, and that the least favorable characterization of service that he may receive would be Under Other Than Honorable Conditions. Upon receipt of this notification, Petitioner exercised all rights. Enclosure (3). h. On 31 May 2017, the Administrative Separation Board (ASB) convened, and determined by majority vote that the preponderance of evidence did not support the basis for separation. The determination was based on Petitioner's negative urinalysis test, favorable polygraph results, testimony of a Navy Drug Testing Lab expert, and the alcohol and drug counselor (ITC B.W.) who testified, under oath, that Petitioner did not confess to smoking marijuana. Enclosure (4). i. On 7 June 2017, confessed that he lied under oath, recanted prior testimony, and furnished a written statement that Petitioner did confess to smoking marijuana. However, Petitioner's command was prohibited by Navy regulation from convening a second ASB for the same alleged misconduct. Instead, his command initiated separation proceeding under reference (b) on 28 July 2017 due to "the overwhelming weight of evidence for drug abuse" and "due to the member admitting that he used drugs." It was also determined that 's testimony critically undermined the testimony of the Troop Commander and Troop Chief, who were both listening to the exact same conversation and both testified that Petitioner admitted to smoking marijuana at that time. Petitioner's commander noted that, at the time of BIOTS processing, Petitioner had not served in an imminent danger zone in the two-year period prior to notification of separation processing. Therefore, Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) was not determined to be a contributing factor, and a Psychiatric or medical evaluation was not required. Upon receipt of the separation processing notification, Petitioner exercised all afforded rights. Enclosures (5) and (6). j. On 5 August 2017, Petitioner responded to his Commander's recommendation for a BIOTS separation. Petitioner asserted that his goal to remain as a Navy SEAL has been jeopardized by false allegations that were determined by an ASB as "no basis for misconduct." Petitioner also noted that he successfully completed a polygraph with no evidence of deception and that the urinalysis within 36 hours of the alleged incident returned negative for any controlled substances. Enclosure (7). k. On 6 September 2017, the Commander, Naval recommended approving Petitioner's BIOTS separation, noting that the 31 May 2017 ASB was tainted by false information intentionally put before the ASB to the benefit of the Petitioner, and that separation is the natural and appropriate continuation of the process in light of the circumstances. Enclosure (8). l. On 27 September 2017, Petitioner was transferred out of SEAL and was issued an adverse Detachment of Individual/Regular Evaluation Report and Counseling Record for the reporting period 16 March 2017 to 27 September 2017. A "Not Observed" Supplemental Evaluation Report for the same reporting period was later added to Petitioner's OMPF with the original Evaluation. Enclosures (9) and (10). m. On 5 October 2017, the Commander, Naval Command recommended approving Petitioner's BIOTS separation with a General, Under Honorable Conditions characterization of service. Enclosure ( 11 ). The Assistant Secretary of the Navy, Manpower and Reserve Affairs (ASN (M&RA)) found that Petitioner committed a military drug related offense as defined by reference (c), and ordered Petitioner's separation with a General, Under Honorable Conditions characterization of service and a RE-4 reentry code. Petitioner was discharged on 23 March 2018. n. On 11 December 2018, the Department of Veterans Affairs granted service connected disability for unspecified trauma and stressor related disorder ( claimed as PTSD) with an evaluation of 70 percent effective 24 March 2018 based on panic attacks (weekly), difficulty in adapting to stressful circumstances, depressed mood, suicidal ideation, disturbances of motivation and mood, flattened affect, anxiety, intermittent inability to perform activities of daily living, chronic sleep impairment, and occupational and social impairment with reduced reliability and productivity. Enclosure (12). o. In response to a 7 December 2018 Remand Order, the ASN (M&RA) conducted a de nova review of Petitioner's ADSEP. The ASN (M&RA) determined that the 31 May 2017 ASB ignored the overwhelming weight of the evidence that demonstrated that Petitioner committed a military drug related offense as defined by reference (c). Specifically, the evidence overwhelmingly demonstrated that Petitioner knowingly acquired and possessed a substance that he believed to be marijuana. Alternatively, based on Petitioner's belief that he acquired a substance that he believed to be marijuana, the ASN (M&RA) also found that the evidence overwhelming demonstrates that he attempted to wrongfully possess a controlled substance. The ASN (M&RA) determined that this sufficiently satisfied the requirements for separation under reference (c). Reference (c), paragraph 2(b.) provides that drug related offenses include "Drug Abuse - illegal or wrongful use, possession of controlled substances or attempts to commit drug offenses." Enclosure (13). p. On 18 August 2020, the NDRB found that Petitioner's discharge was improper and concluded that Petitioner's characterization of service shall change to Honorable, the narrative reason for separation shall remain Secretarial Authority with a corresponding separation code of JFF, and the reentry code shall change to RE-1. Enclosure (2). q. Petitioner, with counsel, contends that he was unjustly separated by the Secretary of the Navy under the BIOTS while on active duty. Petitioner argued that the sole new evidence offered against Petitioner was the recanted statement from ITC B.W. that he had previously lied under oath when stating that Petitioner did not confess to the use of marijuana. Moreover, this was the only available new evidence relied on by the command when finding that the administrative board failed to recognize the overwhelming weight of evidence. Petitioner contends that the actions of the Command and the Secretary of the Navy to separate him under the BIOTS regulation were in violation of Navy regulations and arbitrary and capricious, and that the Navy did not allow Petitioner an opportunity to def end himself against an alleged false official statement. r. Reference (d) provides standards for the Board in determining whether relief is warranted on the basis of equity, injustice, or clemency. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that, in the context of mitigating evidence and applicable guidance provided in reference (d), Petitioner's request warrants relief. The Board noted Petitioner exercised his right to refuse NJP, retained civilian counsel, and demanded trial by court-martial. His command did not pursue court­martial, and proceeded with mandatory ADSEP processing. The Board also noted that the ASB determined that the evidence was not sufficient to support, by preponderance of the evidence, the basis for separation by reason of misconduct - drug abuse. The Board noted that the ASB came to this conclusion due to the lack of credibility of witnesses, which was questioned throughout the ADSEP process as statements changed during the investigation and ADSEP processes. The Board also noted Petitioner's polygraph that indicated no deception for use or possession of marijuana, and that the result of his urinalysis was negative. The Board also noted that, after a key witness at the ASB recanted his sworn testimony, Petitioner was again processed for ADSEP by reason of BIOTS "due to the member admitting that he used dmgs." Although the witness admitted to knowingly lying in his sworn statement to the ASB, the Board determined that the witness' new sworn statement -- which now aligned with the Platoon Officer in Charge, Troop Commander, and Troop Chief's sworn statements considered by the ASB -- that Petitioner admitted to using dmgs, did not amount to the "overwhelming evidence" determination by Petitioner's Commander in his 28 July 2017 recommendation for ADSEP. The Board concluded that there was insufficient evidence to establish a nexus between the alleged misconduct and Petitioner's post-service diagnosis of PTSD. In view of the foregoing, and in light of reference (d), the Board concluded that Petitioner's requested relief shall be granted in full, on the basis of equity and injustice. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner's naval record be corrected by reinstating him in the Navy until the date of his original EAOS, with all appropriate back pay and allowances. Petitioner's naval record be corrected by restoring his NEC and designators as a Navy SEAL member. Petitioner's naval record be corrected by issuing a corrected Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect active duty service until his original EAOS. The Defense Finance and Accounting Service (DFAS) complete an audit of Petitioner's records and make payment of any money that Petitioner may be entitled to. Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 19 November 2019. 4. It is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a tme 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. 3/11/202 Executive Director ASSISTANT SECRETARY OF THE NAVY (M&RA) DECISION: Reviewed and Approved Board Recommendation (Grant Relief) JUN O 8 2021 Acting