DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1781-19 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, “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 Encl: (1) DD Form 149 with attachments (2) Advisory Opinion, Docket No: NR20190001781 of 7 Jan 2020 (3) letter of 24 Jan 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Sailor, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect a name change, his entitlement to the awards and commendations earned during his enlistment, an upgrade of his characterization of service, and administrative changes to blocks 11 and 15a. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 9 April 2020, and, pursuant to its regulations, determined 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 applicable statutes, regulations, policies, as well as the enclosed advisory opinion (AO) from a Navy mental health provider and rebuttal response submitted by Petitioner. 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 14 April 1989. On 30 October 1991, he was formally evaluated as an alcohol abuser and directed to participate in Level III treatment. On 14 January 1992, he completed the formal treatment phase and was directed to participate in an aftercare program. On 6 April 1992, Petitioner received nonjudicial punishment (NJP) for two instances of insubordinate conduct toward a superior petty officer, resisting arrest, breach of peace, provoking speech, and drunk and disorderly conduct. On 14 April 1994, he received NJP for an unauthorized absence from 10 March 1994 to 8 April 1994 and missing ship’s movement through neglect. Subsequently, Petitioner was notified of pending administrative separation by reason of misconduct due to commission of a serious offense. After he waived all his procedural rights, Petitioner’s commanding officer (CO) recommended administrative separation by reason of misconduct due to commission of a serious offense with an other than honorable (OTH) characterization of service. The discharge authority concurred with the (CO) and directed an OTH discharge by reason of misconduct. Petitioner was discharged on 14 June 1994. d. At discharge, Petitioner’s DD Form 214 reflected the following awards: National Defense Service Medal and Overseas Ribbon (3RD). His primary specialty was listed as , Technician. Block 15a of his DD Form 214 indicated he did not contribute to the GI Bill. e. Petitioner contends he was unjustly discharged with an OTH characterization of service due to actions resulting from a “documented mental health condition” and his inability “to clearly see or understand the consequences” of his actions. He further contends this was “one action in an otherwise honorable period of service.” Petitioner explains “transitions have always been difficult for me” and “I could not stand the thought of being promoted or changing the work that I was doing.” After transferring from to stateside ship duty on the USS despite attempts to extend in , Petitioner contends he had a difficult time transitioning. When he realized he “could no longer successfully perform my duties due to mental health issues,” he requested shore duty then early discharge but was denied both. Petitioner contends, at this point, that his “mental status rapidly deteriorated” and he felt that he “had no choice but to force a discharge” so he absented himself without authority for exactly 29 days, “enough to ensure a disciplinary review but not enough to receive a court-martial.” f. Petitioner requested the following administrative changes to his DD Form 214: 1) Petitioner requests the name on his DD Form 214 be changed from “” to “” as per his legal name change by the State of , , . He provided the court order but did not provide further explanation for the name change or state an error or injustice associated with the name on his DD Form 214. 2) Petitioner submitted documentation reflecting his receipt of a Navy Achievement Medal for personal achievement from November 1990 to November 1993 and a letter of commendation from Commander, , US Pacific Fleet. 3) Petitioner contends his primary specialty in block 11 should be “DS3.” 4) Petitioner contends block 15a should read “yes” because he contributed to the GI Bill. g. Petitioner further contends his post-service record is deserving of an upgraded characterization of service. In support, he submitted an advocacy letter from his current employer. h. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided the 7 January 2020 AO. The AO states Petitioner has not submitted information that he has a clinical diagnosis of any mental health condition as rendered by a mental health professional and/or that is tied to his military service or in-service misconduct. i. In his rebuttal of 24 January 2020, found at enclosure (3), Petitioner contends the AO is not consistent with reference (d). Hefurther contends that he “clearly showed a change in behavior, deterioration of work performance, inability to conform to behavior expectations of a military environment, and substance abuse resulting in misconduct.” He further states “the fact that these conditions were not diagnosed as mental health conditions during or after my period of service cannot be considered to indicate that the condition did not exist.” Petitioner also explains that he is “not able to provide a firm diagnosis of the condition that existed” because the condition was not properly diagnosed or treated but contends the “lack of diagnosis should not be a definitive factor if other evidence exists.” Additionally, Petitioner contends his lack of subsequent episodes and successful career since discharge “would seem to support the claim that my Navy service did, in fact, exacerbate my mental health condition.” Lastly, he contends that the lack of diagnosis by his post-service licensed psychologist should not be “considered as a conclusion that I did not have a mental health condition during my service.” CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants partial relief. The Board reviewed his application under the guidance provided in references (b) through (d). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards in reachingfair 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, since 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. The Board, after reviewing the awards documentation provided by Petitioner, determined Petitioner was awarded a Navy Achievement Medal for personal achievement from November 1990 to November 1993 and a letter of commendation from Commander, , US Pacific Fleet. The Board carefully reviewed Petitioner’s request to change his name on his DD Form 214 to match his current name but noted it is only authorized to consider applications for name changes to a Petitioner’s DD Form 214 to correct an error or an injustice. Since a DD Form 214 is not a “living” document that is updated with subsequent changes and because Petitioner’s name at the time of discharge was “,” the Board did not find evidence of an error or injustice that warrants changing his name to “” on his DD Form 214. The Board carefully reviewed Petitioner’s application, weighed all potentially mitigating factors, and considered his contentions from his original statement and his rebuttal in response to the AO. The Board, even after considering each of Petitioner’s contentions through the lens of liberal consideration, determined there was insufficient evidence of an error or injustice in the assignment of an OTH characterization of service. By his own statement that he went UA for “exactly 29 days, enough to ensure a disciplinary review but not enough to receive a court-martial,” Petitioner displayed rationale and calculated thought which resulted in the misconduct for which he was discharged and received an OTH characterization of service. Concurring with the AO, the Board determined there was insufficient evidence of a mental health condition attributable to Petitioner’s military service that mayhave mitigated his misconduct. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Navy Personnel Command (NPC) is directed to review Petitioner’s DD Form 214 for administrative correctness. specialty, and GI bill contributions to determine if corrections are appropriate for blocks 11, 13, and 15a. If determined necessary, Petitioner be issued a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty (DD Form 215), indicating the appropriate corrections. No further changes be made to Petitioner’s record. A copy of this report of proceedings be filed in Petitioner’s naval record. Upon request, the VA beinformed that Petitioner’s application was received by the Board on 31 January 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 Regulation, 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.