Docket No: 2720-19  
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 2018 “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: NR20190002720 of 22 April 2020 
      (3) Mental Health Condition Advisory Opinion, Docket No: NR20190002720 of 26 May 2020 


1.  Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his characterization of service.  Enclosures (1) through (3) apply. 

2.  The Board, consisting of , reviewed Petitioner's petition containing certain allegations of error and injustice on 4 June 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, regulations, policies, two advisory opinions (AO) from a Navy mental health provider, and the Petitioner’s materials in rebuttal to the AO. 

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. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits.  On 21 May 1999, the Petitioner went into an unauthorized absence (UA) status for three days, however, there is no record of any discipline for the UA period.  On 14 July 2000, the Petitioner went to non-judicial punishment (NJP) for the wrongful use of a controlled substance (marijuana).  

b. Petitioner enlisted in the Navy and began a period of active service on 28 January 1999.  At all relevant times the stationed on itioner was Petrelated to his petition for relief, 

c. Following the NJP, the Petitioner was notified that he was being processed for an administrative discharge. Unfortunately, the administrative separation (Adsep) documents are not in the Petitioner’s electronic service record.  However, based on the information contained on the Petitioner’s DD Form 214, the command initiated Adsep proceedings by reason of misconduct due to drug abuse.  Ultimately, on 15 September 2000, Petitioner was discharged from the Navyfor misconduct with an “under other than honorable” (OTH) characterization of service and assigned an RE-4 reentry code. The Board specifically noted on Petitioner’s DD Form 214 that the narrative reason for separation was “Misconduct Due to Drug Abuse,” and the separation code was “HKK,” which corresponds to an Adsep case involving drug abuse with an Adsep board waiver. 

d. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) resulting from certain combat stressors he experienced during his 1999  deployment. The Petitioner argued that he served honorably and was a model sailor before becoming ill.  The Petitioner argued that the Board must view his mental health condition and the devastating impacts of his knee injury to his career as mitigating factors to the misconduct underlying his discharge and upgrade his characterization of service.  

e. 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 AOs dated 22 April and 26 May 2020.  The MD observed that the VA granted Petitioner a service-connected disability for major depressive disorder with PTSD (also claimed as anxiety) and rated it at 100%.  The MD concluded by opining that there was sufficient evidence of a service-connected mental health condition and sufficient evidence that Petitioner’s misconduct may have been at least partially attributable to his mental health condition. 


CONCLUSION: 

Upon review and liberal 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 felt that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize his discharge.  The Board also concluded that the Petitioner’s depression and PTSD-related symptoms and condition 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 under OTH conditions, and that a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of virtually all veterans’ benefits. 

Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. Additionally, the Board determined that, in fairness to those Sailors who serve honorably and without incident, Sailors should receive no higher discharge characterization than is due. The Board believed 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 holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner only merits a GEN characterization of service and no higher, and that the reentry 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 or about 6 March 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. 



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