DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 215-19 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 “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” (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: NR20190000215 of 24 Sep 19 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s 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, regulations, and policies, and 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. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. Petitioner initially enlisted in the Navy and began a period of active service on 18 October 1993. On 13 July 1995, the Petitioner received non-judicial punishment (NJP) for a simple assault, and his command subsequently issued him a “Page 13” counseling warning documenting his misconduct. On 16 September 1995, the Petitioner underwent a mental health evaluation. He was hospitalized for bizarre behavior and was diagnosed with a narcissistic personality disorder. d. On 11 and 18 January 1996, the Petitioner received two separate NJPs for offenses involving unauthorized absence (UA), disrespect to a superior commissioned officer (DSCO), willful disobedience of a superior commissioned officer, willful disobedience of a petty officer and disorderly conduct. On 15 November 1996, the Petitioner received NJP for UA, DSCO, disrespect to a superior petty officer, disobeying a lawful order, false official statement, and conduct prejudicial to good order and discipline. e. On 15 November 1996, Petitioner’s command initiated an administrative action to separate him from the naval service by reason of reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct. The Petitioner elected to consult with counsel and to present his case to an administrative separation board. f. In the interim, Petitioner underwent another mental health exam on 11 December 1996 following bizarre behavior displayed at his command. The Petitioner was diagnosed with a schizotypal personality, and the examiner recommended his immediate separation for a personality disorder, not misconduct. g. On 16 December 1996, an administrative discharge board (ADB) convened at . Following the presentation of evidence and witness testimony, the ADB unanimously determined by a preponderance of the evidence that the Petitioner committed misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct. Subsequent to the misconduct findings, the ADB recommended that the Petitioner be separated from the naval service and receive an other than honorable (OTH) characterization of service. On 22 January 1997, the Petitioner was separated from the Navy with an OTH characterization of service. h. In short, Petitioner contended that he was suffering from a mental health condition during his military service. The Petitioner argued that the Board must view his mental health condition and related symptoms as a mitigating factor to the misconduct leading to his separation and upgrade his discharge. i. As part of the review process, a Navy Medical Officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records. The NMO issued an AO dated 24 September 2019, observing that Petitioner was diagnosed with a service-connected personality disorder. The NMO determined that Petitioner’s misconduct was consistent with the behaviors demonstrated by longstanding characterological traits, and opined that there was evidence to attribute his misconduct to his longstanding personality disorder. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial 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, the Board found that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s mental health-related condition is a causative factor in the misconduct contributing to his discharge and characterization. With that being determined, the Board concluded that a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate at this time. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board noted that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record, given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits a GEN characterization of service, and that the reentry/reenlistment code should remain RE-4. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new General (Under Honorable Conditions) 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 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. 2/17/2020