DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 11412-19 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-3 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)NAVPERS 1070/607, Court Memorandum of 4 Apr 93 (4)DD Form 256N, Honorable Discharge Certificate of 25 May 93 (5)NAVPERS 15182A, Certificate of Reenlistment of 26 May 93 (6) NAVPERS 1070/607, Court Memorandum of 4 Jan 94 (7) Memo, subj: Notice of an Administrative Board Proposed Action of 4 Jan 94 (8)Petitioner Memo, subj: Statement of Awareness and Request for, or Waiver of, Privileges of 5 Jan 94 Msg: Recommendation for Admin Separation of 6 Jan 94 (9) Msg: Recommendation for Admin Separation of 6 Jan 94 (10) BUPERS Msg: Admin Discharge Authorization PERS 832 of 26 Jan 94 (11)VA Medical Center San Diego Psychiatric Progress Notes, printed 27 Feb 20 (12) BCNR Advisory Opinion of 1 Feb 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 that his characterization of service be upgraded to honorable and that all of his benefits be restored. 2. The Board reviewed Petitioner's allegations of error or injustice on 15 March 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 records, 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 review Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 27 December 1989. See enclosure (2). d. On 3 April 1993, Petitioner receive nonjudicial punishment (NJP) for insubordinate conduct in violation of Article 91, Uniform Code of Military Justice (UCMJ), and failure to obey an order in violation of Article 92, UCMJ. See enclosure (3). e. On 25 May 1993, Petitioner was honorably discharged upon the completion of his first enlistment. See enclosure (4). He immediately reenlisted effective 26 May 1993. See enclosure (5). f. On 4 January 1994, Petitioner received NJP for destroying private property in violation of Article 109, UCMJ, and drunk and disorderly conduct onboard his ship in violation of Article 134, UCMJ. See enclosure (6). g. By memorandum dated 4 January 1994, Petitioner was notified that he was being considered for an administrative discharge for misconduct due to commission of serious offenses. The serious offenses described were those for which he received NJP on that day. See enclosure (7). h. On 5 January 1994, Petitioner waived his right to an administrative discharge board and indicated that he did not object to the proposed separation. See enclosure (8). i. By message dated 6 January 1994, Petitioner’s commanding officer recommended to the separation authority that Petitioner be discharged under other than honorable (OTH) conditions for misconduct due to the commission of serious offenses. See enclosure (9). j. By message dated 26 January 1994, the separation authority directed that Petitioner be discharged from the Navy under OTH conditions for misconduct due to commission of a serious offense. See enclosure (10). k. On 1 March 1994, Petitioner was discharge from the Navy under OTH conditions for misconduct. See enclosure (2). l. On 3 December 2019, Petitioner was diagnosed with post-traumatic stress disorder (PTSD) by a Department of Veterans Affairs (VA) mental health provider. This diagnosis was based in part upon Petitioner’s description of multiple traumatic events from his naval service. See enclosure (11). m. Petitioner asserts that the glass that he broke, which was the basis for his second NJP and one of the serious offenses for which he was separated, was the result of a severe panic attack. He also asserts that he was not under the influence of alcohol as he had been charged, but rather was crying uncontrollably, begging anyone for help, and was then restrained and involuntarily sedated by medical personnel. He claims that he was diagnosed with a personality disorder at the time, but his condition has since been diagnosed by the Department of Veterans Affairs (VA) as PTSD. Petitioner believes his discharge to be unjust for several reasons. First, he asserts that he developed his mental health condition within the Navy. Second, he was a good Sailor with high academic marks and had been honorably discharged upon the completion of his first enlistment. Third, he contends that he deployed for Desert Shield/Desert Storm, Panama, and Somalia during the Battle of Mogadishu in 1993. Finally, he asserts that he lost everything in a moment of weakness, during which he was begging for help. Under these circumstances, he took the first opportunity that he had to return home, not realizing the cost of his OTH discharge at the time. n. Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for the Board’s consideration. The AO found no evidence that Petitioner had been diagnosed with a Personality Disorder while in the service as he claimed, but did note that Petitioner’s misconduct occurred after the traumatic events that he reported and included alcohol abuse which is a frequent maladaptive coping behavior. TheAO concluded that Petitioner’s PTSD diagnosis should be considered as mitigation for his misconduct. MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that partial relief is warranted in the interests of justice. Because Petitioner based his claim for relief in whole or in part on PTSD, the Majority reviewed Petitioner’s application in accordance with theguidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s claim of PTSD and the effect that it may have had upon his conduct. In this regard, the Majority substantially agreed with the findings of the AO that Petitioner’s PTSD condition should be considered as mitigation for his misconduct. In additional to applyingliberal consideration to Petitioner’s claim of PTSD and the effect that it may have had upon his conduct 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 the totality of Petitioner’s record, which included several sea deployments for combat operations; the favorable character reference provided by Petitioner’s former command master chief, which described Petitioner as a very good and intelligent Sailor who overcame institutional racism onboard his previous ship and which added credibility to Petitioner’s claim that the conduct for which he was separated was isolated and likely mitigated by a mental health condition; that Petitioner was honorably discharged from his first enlistment; the relatively minor nature of Petitioner’s misconduct; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. In particular, the Majority found that Petitioner’s discharge characterization was undulyharsh for a single incident of minor misconduct, especially given the Majority’s determination this incident was mitigated by Petitioner’s mental health condition. Accordingly, the Majority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions) in the interests of justice. TheMajority considered whether Petitioner’s characterization of service should be upgraded to fully honorable, but determined that it should not given the totality of the circumstances. Specifically, it found that the mitigating circumstances discussed above were offset by Petitioner’s two NJP, one of which occurred prior to the onset of his mental health condition. Accordingly, the Majority determined that an upgrade of Petitioner’s characterization of service to general (under honorable circumstances), which will provide Petitioner access to most veterans benefits, is appropriate to serve the interests of justice. MAJORITY RECOMMEDATION: 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 determined that no relief is warranted in Petitioner’s case. Like the Majority, the Minority also applied liberal consideration to Petitioner’s claimed mental health condition and the effect that it may have had upon Petitioner’s misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). However, the Minority disagreed with the Majority finding that relief is warranted under the totality of the circumstances. Specifically, the Minorityfound that Petitioner’s misconduct was serious enough to warrant the OTH service characterization that he received, and that the potentially mitigating circumstances did not so significantly outweigh Petitioner’s misconduct so as to justify an upgrade to his service characterization. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no change 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) Reviewed and Approved MAJORITY Recommendation (Partial Relief)