Docket No: 11157-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER USN, XXX-XX- 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) USECDEF 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 with attachments (2) Case Summary 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 to reflect an upgraded characterization of service. 2. The Board consisting of reviewed Petitioner’s allegations of error and injustice on 10 February 2021 and, pursuant to its regulations, determined the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Secretary of Defense regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board considered the advisory opinion (AO) furnished by a qualified mental health provider. 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 26 August 1993. On 17 December 1993, he received a retention warning and counseling after falling asleep in class, losing his government meal pass, disregarding barracks rules and regulations, and sleeping while on cleaning detail. On 24 March 1994, Petitioner received nonjudicial punishment (NJP) for failure to obey a lawful order by writing an 1800 word essay vice a 2000 word essay as ordered by a Master Chief Petty Officer. On 22 December 1994, he received a second NJP for two instances of dereliction of duty and driving under the influence. On 8 March 1995, he received a third NJP for two periods of unauthorized absence. On 23 May 1995, Petitioner was convicted by summary court-martial for resisting apprehension and wrongfully using provoking words. On 27 October 1995, Petitioner was convicted by general court-martial (GCM) for wrongful use of marijuana and sentenced to 180 days confinement and forfeiture of pay. d. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to drug abuse, commission of a serious offense, and pattern of misconduct. After he waived his procedural rights, Petitioner’s commanding officer recommended administrative separation by reason of misconduct with an other than honorable (OTH) character of service. The discharge authority concurred and directed Petitioner’s discharge with an OTH character of service by reason of misconduct. Petitioner was discharged on 7 May 1996. e. Petitioner contends he wrongfully used marijuana as a coping mechanism. Specifically, he contends the following: 1) When he entered the military, he “had a problem with weed” and after admitting it to the recruiters, “they accepted [him] into the military anyway.” 2) Being falsely accused of rape was extremely traumatic and “the stress of trying to defend” himself against the terrible accusation caused him to be depressed, anxious, and angry all the time. Due to the stress of the GCM, which found him not guilty of rape, he used marijuana to self-medicate. 3) Dealing with being the “only black guy in the class” and being treated “so differently than the others,” also caused Petitioner to use marijuana. 4) Petitioner suffers from PTSD as a result of the terrible experience of being falsely accused and the racism he encountered. f. Petitioner submitted advocacy letters, describing his post-service accomplishments and character, which were considered by the Board. g. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO. The AO noted Petitioner’s statement that he developed PTSD after being falsely accused of rape, the subsequent GCM, and the eventual “not guilty” findings. However, the AO further notes Petitioner acknowledged he utilized marijuana as a coping method during the purported traumatic event and attributed Petitioner’s use to a mental health condition and an effort to self-medicate. The AO states it is not surprising marijuana was the maladaptive coping skill Petitioner resorted to given his reported use prior to enlistment. Further, the AO states Petitioner’s mental health condition may mitigate his misconduct for marijuana use but his other misconduct is unlikely to be the result of a mental health condition. 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 (e). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The Board, applying liberal consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner suffered from a mental health condition that mitigated, but did not excuse his drug use. However, noting the three NJPs and SCM prior to the reported traumatic event of being falsely accused of rape and enduring a GCM, the Board determined Petitioner’s misconduct warranted a general (under honorable conditions), character of service. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214, indicating his characterization of service as “general, under honorable conditions.” That a copy of this report of proceedings 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. 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. 2/23/2021 Executive Director