Docket No: 3120-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD 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 (e) 10 U.S.C. § 1177 (f) MPN 1910-702, 704 Encl: (1) DD Form 149 with attachments (2) Advisory Opinion, Docket No: NR20190003120 of 24 May 20 (3) letter of 3 Jun 20 (4) letter of 30 Jul 19 1. Pursuant to the provisions of reference (a), Petitioner, a former chief petty officer (CPO) in the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect he was retired after twenty years of service with an honorable characterization of service. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 25 June 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 naval service records, applicable statutes, regulations, and policies, as well as the 24 May 2020 advisory opinion (AO) from a Navy mental health provider and a rebuttal letter submitted by Petitioner’s counsel dated 3 June 2020. 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 5 September 1995, served continuously on active duty, and most recently reenlisted for five years on 4 February 2011. On 20 March 2014, after admitting to a consensual sexual relationship with a female subordinate, Petitioner received nonjudicial punishment for failure to obey a general order and adultery. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to commission of a serious offense. Petitioner elected an Administrative Discharge Board (ADB). The ADB determined by a vote of 3 to 0 that Petitioner committed a serious offense that warranted separation with a general, under honorable conditions (GEN), characterization of service. On 29 July 2014, Petitioner’s commanding officer (CO’s) directed he be discharged with a GEN characterization of service due to misconduct. Petitioner was discharged on 11 June 2015. (Examiner’s note: There is nothing in the record that indicates the cause for the delay between the CO’s letter of 29 July 2014 and Petitioner’s discharge on 11 June 2015. The record reflects that on 2 April 2015, an opinion letter, submitted by a mental health provider stating Petitioner had a preexisting diagnosis of Post-Traumatic Stress Disorder (PTSD), was forwarded to Commander, Navy Personnel Command (PERS 832). The record is incomplete in that it does not contain “CHNAVPERS MSG DTG 161937Z FEB 16” which is referenced in the CO’s notification to PERS 832 dated 6 September 2017 but the CO’s notification states “CNP directed separation” and the letter was “forwarded for historical filing purposes.”) d. Petitioner’s DD Form 214 does not contain a Block 18 statement regarding his continuous honorable active service during his first four enlistments. e. Petitioner, through counsel, makes the following contentions: 1) The Navy’s separation of Petitioner was contrary to law because the Navy failed to determine whether PTSD was a contributing factor to the misconduct. a) Petitioner contends the Navy did not comply with reference (e) which requires a medical examination to evaluate a diagnosis of PTSD and prohibits the separation of sailors “until the results of the medical evaluation have been reviewed by appropriate authorities.” b) Petitioner contends the Navy did not comply with the requirements of reference (f) which mandates a determination as to whether PTSD was a contributing factor to the conduct forming the basis for separation. c) Petitioner contends there is no evidence the Chief of Naval Personnel acted as the separation authority as is required by reference (f). 2) The ADB did not enjoy a full presentation of the evidence concerning PTSD and its relationship to the underlying misconduct. Specifically, Petitioner and his legal counsel made the decision to not emphasize his PTSD diagnosis to the ADB in order to “make clear” to the ADB that he was accepting full responsibility for his conduct, as would be expected of a CPO. This decision resulted in the ADB having an “incomplete and inaccurate presentation of the facts.” 3) The Navy’s involuntary separation of Petitioner after over 19 years and nine months of service was grossly inequitable. Further, Petitioner contends the Navy retained him and utilized his services for nearly one year following the recommendation for separation so there would have been “no harm to the Navy in allowing him to serve the remaining 83 days or so until retirement eligibility.” 4) Following his separation, Petitioner has continued to provide outstanding service to the Navy and our nation. He has learned his lessons and used his experience to benefit others. In support of this contention, Petitioner submitted several advocacy letters from his current employer, , and from supervisors and leaders he has worked with, to include the Supervisor of Shipbuilding in . e. In support of Petitioner’s request, the senior officer that presided over the ADB submitted enclosure (4) stating “I strongly endorse his petition to the board.” Specifically, the senior officer stated the ADB felt constrained by a lack of options. Had the board been able to reduce HMC to HM1, for example, that would have been strongly considered. Had HMC come to us as an HM1, a decision other than discharge would have been strongly considered.” The letter also specifically stated “The defense made mention of a PTSD condition. This condition and its implications were not presented by a qualified medical practitioner with expertise in PTSD…and the potential implications of PTSD which can create behavioral changes that could have explained some of his behaviors.” f. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 24 May 2020. The AO states Petitioner was diagnosed with PTSD in-service for a military-related traumatic incident for which he received treatment while in-service. The AO further explains that the “impact of his PTSD, as related to his misconduct, was explained by his treating clinical psychologist and linked his PTSD to his military conduct.” Based on the available evidence, the AO concluded there was sufficient evidence to demonstrate Petitioner’s service-related PTSD was a mitigating factor in his misconduct. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board, relying upon enclosure (4) submitted by the senior officer of the ADB and Petitioner’s in-service and post-service records, determined it was unjust for Petitioner to be separated, within months of attaining sufficient service for retirement, for the misconduct which led to his discharge. The Board determined it was in the interest of justice for Petitioner to be granted constructive credit to allow him to attain sufficient time for retirement. The Board specifically determined Petitioner should be retired and not transferred to the Fleet Reserve. However, the Board, even applying liberal consideration, determined Petitioner’s misconduct warranted a GEN characterization of service. The Board noted the CO’s comments that Petitioner “engaged in an inappropriate sexual relationship with a junior sailor who worked for him” and “to aggravate the matter, the inappropriate sexual relationship occurred in clinic workspaces during working hours.” The Board further noted the CO’s comment that Petitioner’s misconduct “had a significant impact on my CPO mess, eroded the trust of my junior sailors in their CPOs, and was prejudicial to unit cohesion and good order and discipline.” Despite the explanation that PTSD affected his judgment and his personal relationships with his wife and children, the Board determined Petitioner’s misconduct as a CPO with a junior subordinate in the workspaces during working hours was not mitigated by his PTSD. The Board concluded Petitioner’s final enlistment, which was marred by his 2013 inappropriate sexual relationship, is appropriately characterized as GEN. The Board, having determined Petitioner was unjustly separated vice being allowed to retire, found the contentions regarding the procedural errors and injustice were moot and did not make determinations or specific comments. RECOMMENDATION: In view of the above, the Board directs the following corrective action: The record of discharge from the U.S. Navy, effective 11 June 2015, is rescinded. Note: Petitioner's DD Form 214 will be expunged. Petitioner be granted the constructive credit to allow him to attain 20 years of active service. Petitioner be issued a new DD Form 214 with a SPD code of NBD (Sufficient Service for Retirement) to include all normal markings that pertain to this type of separation. Block 18 should include the following language: CONTINUOUS HONORABLE ACTIVE SERVICE FROM 5 SEPTEMBER 1995 TO 03 FEBRUARY 2011. 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 18 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.