DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 11231-19 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) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” 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)USD Memo, “Clarifying Guidance to MilitaryDischarge Review Boards and 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) 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/attachments (2) DD Form 214 (3) Summary Court-Martial record, dtd 13 Jul 95 (4) Co Memo, subj: Notice of an Administrative Board Procedure Proposed Action, dtd 8 Aug 95 (5)Petitioner Memo, subj: Statement of Awareness and Request for, or Waiver of, Privileges, dtd 8 Aug 95 (6) BUPERS Msg, subj: Admin Discharge ICO [Petitioner], dtg 131847Z Oct 94 (7)Health Care System Discharge Summary, dtd 6 July 2018 (8) Board ofVeterans’ Appeals Order, in the Appeal of [Petitioner], dtd 19 November 2019 (9)Advisory Opinion, dtd 29 Jan 21 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 reconsideration of the decisions in Docket No. 0163-18 and Docket No. 4320-16 denying his requests to upgrade his other than honorable (OTH) characterization of service to honorable. 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 record, and applicable statutes, regulations, and policies, to include references (b) – (e). 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, 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. Petitioner enlisted in the Navy and began a period of active duty on 18 November 1992. See enclosure (2). d. On 13 July 1995, Petitioner was convicted by summary court-martial (SCM) of conspiring with another Sailor to break restriction in violation of Article 81, Uniform Code of Military Justice (UCMJ); failing to go to his appointed place of duty (restricted men’s muster) in violation of Article 86, UCMJ; three specifications of unauthorized absence (UA) totaling 108 days between 9 February 1995 and 25 June 1995 in violation of Article 86, UCMJ; two specifications of missing movement of the in violation of Article 87, UCMJ; two specifications of wrongful use of amphetamine and/or methamphetamine in violation of Article 112a, UCMJ; and wrongful use, with intent to deceive, of another’s militaryidentification card and breaking restriction, both in violation of Article 134, UCMJ. He was sentenced to 30 days of confinement, reduction in grade to E-1, and forfeiture of pay. See enclosure (3). e. By memorandum dated 8 August 1995, Petitioner was notified that he was being considered for an administrative separation by reason of misconduct due to the commission of a serious offense, as evidenced by his SCM conviction. See enclosure (4). Petitioner waived his right to an administrative separation board on that same day. See enclosure (5). f. By message dated 13 October 1995, the separation authority directed that Petitioner be discharged under OTH conditions for misconduct. See enclosure (6). g. On 23 October 1995, Petitioner was discharged from the Navy under OTH conditions for misconduct. See enclosure (2). h. On 6 July 2018, Petitioner was diagnosed with chronic post-traumatic stress disorder (PTSD) by a Department of Veterans Affairs (VA)-affiliated health care provider. This lieutenant onboard the after the lieutenant had hung himself. Petitioner also was diagnosed with recurrent major depressive episodes, and mild neurocognitive disorder due to traumatic brain injury (TBI).1 See enclosure (7). i. On 19 November 2019, the VA’s Board of Veterans’ Appeals granted Petitioner service connection for treatment purposes only for post-traumatic stress disorder (PTSD), finding that he manifests PTSD as a result of a corroborated in-service stressor. The triggering stressor was Petitioner’s discovery of the body of his lieutenant onboard the enclosure (8). j. Petitioner asserts that he was discharged under OTH conditions while struggling with PTSD. He states that he did not have PTSD until he was deployed in 1994 and started having problems in 1995, but he was never offered help for this conditions. He describes struggling for months with depression, suicidal ideations, nightmares and insomnia, and states that he turned to illegal substances and abused alcohol to self-medicate for these symptoms. In support of his application, Petitioner provided a letter from a VA mental health provider, dated 28 December 2020, confirming his current diagnosis with PTSD. See enclosure (1). k. Due to the claim of PTSD, 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 found that Petitioner provided a credible narrative of his traumatic events and described psychological symptoms and behavioral changes consistent with PTSD. Specifically, the AO noted that Petitioner’s pre-deployment performance evaluation marks averaged 4.0, while his post-deployment marks dropped to 2.6. The AO concluded that there is sufficient objective evidence that Petitioner incurred PTSD as a result of his military service, and that his in-service misconduct could be attributed to PTSD. See enclosure (9). MAJORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Majority of the Board determined that Petitioner’s application warrants partial relief. Based upon the evidence of Petitioner’s PTSD diagnosis and symptoms, the Majority considered Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s claim of PTSD, and the effects that this condition may have had upon his conduct. The Majority also gave special consideration to the VA determination that Petitioner’s PTSD condition was service connected. In this regard, the Majority substantially concurred with the AO finding that there is sufficient evidence that Petitioner incurred PTSD as a result of his service in the Navy, and that his misconduct may be at least partially attributable to this condition. In addition to applying liberal consideration to Petitioner’s PTSD condition in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, Petitioner’s entire military record, particularly the fact that his service was clearly meritorious prior to the sea deployment that produced the PTSD triggering traumatic event, as evidence by his performance marks; that Petitioner was never diagnosed or treated for the PTSD condition that he asserts he was suffering from at the time of his discharge; that Petitioner continued to suffer the effects of untreated PTSD after his discharge from the Navy; Petitioner’s post-service work as a fire fighter, which resulted in his TBI condition; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority determined that the interests of justice warrant an upgrade of Petitioner’s characterization of service to “general (under honorable conditions).” The Majority considered whether an upgrade of Petitioner’s characterization of service to honorable was warranted, but determined that it was not under the totality of the circumstances given the quantity and nature of the misconduct for which Petitioner was discharged. 1 Petitioner’s TBI was incurred due to a post-service vehicle accident. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions)”; That no further changes be made to Petitioner’s naval record; That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: After careful review and consideration of all of the evidence of record, the Minority of the Board disagreed with the Majority conclusion that Petitioner’s application warrants relief. Like the Majority, the Minority applied liberal consideration to Petitioner’s claim of PTSD in accordance with references (b) – (d). The Minority does not question that Petitioner is suffering from PTSD symptoms, but rather found insufficient evidence to conclude that Petitioner’s PTSD condition manifested itself while he was in the Navy. In reaching this conclusion, the Minority noted that Petitioner did not mention any mental health concerns upon his discharge from the Navy in 1995, and that it was not until after his post-service traumatic incidents that Petitioner began to show any PTSD symptoms. Further, by his own admission to the VA mental health provider, Petitioner was a “fully functioning person” until his vehicular accident in 2016. See enclosure (7). Based upon this, the Minority found, even while applying liberal consideration, that the evidence suggests that Petitioner’s PTSD symptoms were more likely the result of his post-service traumatic experiences than the result of any of the traumatic experiences that he described during his service in the Navy. The Minority also considered the totality of the circumstances to determine whether relief was warranted in the interests of justice in accordance with reference (e). However, given its doubts regarding the source of Petitioner’s PTSD symptoms, the Minority found that the quantity and nature of Petitioner’s misconduct, specifically the duration of his UA, wrongful drug use, and missing movements, far outweighed any of the potentially mitigating circumstances. Accordingly, the Minority found that relief was not warranted under the totality of the circumstances. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrections be made to Petitioner’s naval record. 4. It is certified that 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 titled 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 General (under honorable conditions)) 3/18/2021 Assistant General Counsel (M&RA)