Docket No: 3433-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. §1552 (b) 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” Encl: (1) DD Form 149 with attachments 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed the enclosure requesting a discharge upgrade following his separation for a condition (not a disability) interfering with the performance of duty. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 7 May 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 and medical records, and applicable statutes, regulations, and policies. 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. The Petitioner enlisted in the Navy and began a period of active service on 8 November 1999. In early 2002, the Petitioner was notified of proposed administrative separation (Adsep) by reason of convenience of the government on the basis of physical or mental conditions not amounting to a disability that impaired his performance of duty. Unfortunately, the Adsep documents are not in the Petitioner’s electronic service record. The Petitioner had the rights to consult with counsel, submit statements on his own behalf, and to have a general court-martial convening authority review his case. Based on Petitioner’s number ofyears of service, he was not entitled to an Adsep board, and the lowest eligible discharge characterization he could have received was General (Under Honorable Conditions) (GEN). Ultimately, on 17 April 2002, Petitioner was discharged from the Navy with a GEN discharge and assigned an RE-3G reentry code. The Board specifically noted on his DD Form 214 that the narrative reason for separation was “Condition, Not a Disability,” and his separation code was “JFV,” which corresponds to and describes an Adsep case involving a condition (not a disability) interfering with the performance of duty with no Adsep board held. d. Petitioner contended that his discharge was in error and unjust because his military service was not discontinued due to poor character issues. He stated that his discharge instead was due to pain in his knees from constantly traversing the stairwells on board his ship and that he requested to be discharged. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The Board observed that the governing MILPERSMAN provision for Petitioner’s Adsep, Paragraph 1910-120, provides that the characterization of service under this provision shall be honorable unless a GEN characterization is warranted. The Board determined that the Petitioner’s record did not contain adverse information or misconduct to warrant a GEN discharge. The Board also observed that Petitioner’s trait averages on his periodic performance evaluations met minimum qualifying criterion and concluded that a discharge upgrade is appropriate. Although not specifically requested by the Petitioner, the Board did not sua sponte change the existing reentry code. The Petitioner’s current reentry/reenlistment code is “RE-3G.” The Board noted that this reentry code directly corresponds to: “condition (not physical disability) interfering with the performance of duty,” and is the appropriate designation in cases such as Petitioner’s absent any evidence to the contrary. The Board further noted that the RE-3G reentry code may not prohibit reenlistment, but requires that a waiver be obtained, and that recruiting personnel are responsible for determining whether Petitioner meets the standards for reenlistment and whether or not a request for a waiver of the reentry code is feasible. Accordingly, the Board concluded the Petitioner was assigned the correct reentry code based on his circumstances, and that such reentry code was proper and in compliance with all Navy directives and policy at the time of his discharge. Despite the fact that the Adsep records were not in the service record, the Board relied on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed he was properly processed for separation and discharged from the Navy. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s characterization of service be changed to “Honorable.” That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That Petitioner be issued a new Honorable 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 originally received by the Board on 27 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.