Docket No: 0204-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: 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 of 10 Sep 19 1. Pursuant to reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct the separation code on his Certificate of Release or Discharge from Active Duty (DD Form 214). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 24 October 2019, 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 naval service records, applicable statutes, regulations, and policies, as well as the enclosed 10 September 2019 advisory opinion (AO) from a qualified mental health provider and documentation provided in rebuttal by the 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 Marine Corps on 2 July 2007. On 9 April 2008, he was diagnosed with bipolar disorder, personality disorder, and asthma. Subsequently, Petitioner was notified of pending administrative separation action by reason of convenience of the government due to condition, not a disability, and by reason of defective enlistment due to fraudulent enlistment (failing to disclose his pre-existing disorder). After he waived his procedural rights, Petitioner’s commanding officer recommended that he be discharged with a general (under honorable conditions) (GEN), characterization of service by reason of convenience of the government due to condition, not a disability and by reason of defective enlistment due to fraudulent enlistment. The discharge authority approved the recommendation. In his directive, the discharge authority directed that Petitioner be separated “with a reenlistment code of RE-3C and a separation code of JDA1 (condition not a disability).” The directive further states “Ensure SNM signs Service Record Book (SRB) acknowledging receipt of RE-3P code.” On 8 October 2008, Petitioner was discharged with a GEN characterization of service with the separation code “JDA1” which denotes “fraudulent entry into military.” Petitioner had previously been counseled and acknowledged that he was being assigned a RE-3P “due to a condition not a disability” and given an administrative remarks entry. However, his DD Form 214 reflects that he received a RE-3C reentry code. d. Petitioner contends he was diagnosed with bipolar and personality disorder in the military and that no outside or civilian doctors diagnosed a mental health condition prior to service. He further contends that he started to have physical issues after completion of training, which in turn generated mental health issues at his permanent duty station. He also contends that he had difficulties with his Staff Noncommissioned Officer which led to the beginning of his anger issues. e. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided the 10 September 2019 AO to the Board, enclosure (2). The AO noted Petitioner was diagnosed with a mental health condition during military service that was determined to be a condition pre-existing his entry into the military. The AO concluded there was insufficient evidence of an error in his in-service diagnosis. The AO was forwarded to Petitioner for review and comment on 11 September 2019, and he was given 30 days in which to submit a response. Petitioner submitted an additional statement in rebuttal (essentially restating the contentions of his application), which was considered by the Board. 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 (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 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, 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 noted the errors made in the discharge authority’s directive. Specifically, the discharge authority sent conflicting directives when he dictated a “separation code of JDA1 (condition not a disability)” because “JDA1” denotes “fraudulent entry” and not “condition, not a disability.” Further, the discharge authority erred by directing two different reentry codes be assigned. The Board determined that it was in the interest of justice to correct Petitioner’s separation code but, rather than attempt to interpret the confusing directives, the Board concluded it was most appropriate to assign Petitioner a separation reason of “secretarial authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the narrative reason for separation as “secretarial authority,” separation code as “JFF1,” and separation authority as “MARCORSEPMAN 6421”. 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 30 November 2018. 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.