DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1667-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo of 3 Sep 14 “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder” (c) PDUSD Memo of 24 Feb 16 “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) USD Memo of 25 Aug 17 “ClarifyingGuidance 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” (e) USECDEF Memo of 25 Jul 18 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments (2) Mental Health Condition Advisory Opinion, Docket No: NR20190001667 of 7 Feb 20 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to change his narrative reason for discharge and his reentry code. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 16 April 2020, 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 his naval service records and his medical records, applicable statutes, and regulations, policies. The Board also considered enclosure (2), an advisory opinion (AO) from a 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. Regarding the Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of record. c. Petitioner originally enlisted in the Navy and began a period of active service on 8 April 1997. On 11 June 1998, the Petitioner went to non-judicial punishment (NJP) for unauthorized absence (UA), and for two specifications of failing to obey a lawful order. On 7 January 2000, the Petitioner went to NJP for the dishonorable failure to pay a just debt. On 24 March 2000, the Petitioner went to NJP for three specifications of UA, and for the wrongful use of a controlled substance (MDMA, aka “ecstasy”). d. On 24 March 2000, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse. The Petitioner exercised his right to submit a written statement to the separation authority, but expressly waived in writing his rights to consult with counsel and to present his case to an administrative discharge board. On 17 May 2000 Petitioner was discharged from the Navy for misconduct with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code. e. On 8 February 2016, the Naval Discharge Review Board (NDRB) granted Petitioner partial relief and upgraded his discharge characterization to honorable. However, the NDRB did not identify any improprieties with the administrative separation processing and did not change the Petitioner’s narrative reason or reentry code. f. In short, Petitioner contended that he was suffering from fully disclosed, yet untreated, mental illnesses including major depressive disorder and bipolar disorder. The Petitioner further stated he used alcohol and drugs as a primary means of self-medicating for the depression, anxiety, and insomnia. The Petitioner argued that the Board must view his mental health conditions as a mitigating factor to the misconduct underlying his discharge and change his narrative reason for separation and reentry code. g. As part of the review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and the available records and issued a favorable AO dated 7 February 2020. The MD observed that the Petitioner disclosed his pre-service mental health history and received a medical waiver to enlist. The MD noted that Petitioner submitted clinical records and other evidence depicting Petitioner’s pre-enlistment mental history of depression, an in-service exacerbation of his major depression with symptoms suspicious for the early stages of bipolar disorder, and a long post-discharge history of worsening bipolar disorder and polysubstance dependence. The MD determined that Peitioner’s diagnoses of major depression and possible evolving bipolar disorder worsened during his military service and likely heavily influenced his misconduct behaviors. The MD concluded by opining that there is sufficient evidence of a service-connected mental health condition exacerbated by Petitioner’s military service, and that it was more likely than not his mental health condition mitigated his misconduct. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in reaching fair and consistent results in these difficult cases.” The memorandum describes the difficulty veterans face on “upgrading their discharges based on claims of previously unrecognized” Mental Health Conditions. The memorandum further explains that because Mental Health Conditions were not previously recognized as a diagnosis at the time of service for many veterans, and diagnoses were often not made until after service was completed, veterans were constrained in their arguments that Mental Health Conditions should be considered in mitigation for misconduct committed, or were unable to establish a nexus between a Mental Health Condition and the misconduct underlying their discharge. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, theBoard felt that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s mental health-related symptoms and conditions as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been discharged for misconduct, and that modifying the narrative reason for separation and reentry code under these circumstances is appropriate at this time. The Board also determined that additional conforming relief was in order to ensure consistency on the Petitioner’s DD Form 214. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner’s separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” the narrative reason for separation should be changed to “Secretarial Authority,” and the reentry code be changed to “RE-1J.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new Honorable Discharge Certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on or about 6 February 2019. 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.