DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3510-19 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, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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) USD 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 (Kurta Memo) (e) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) Advisory Opinion of 7 Dec 17 (3) Advisory Opinion of 22 May 20 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, originally filed enclosure (1) with the Board for Correction of Naval Records (Board or BCNR) requesting certain administrative relief based on legal and equitable grounds as outlined in his petition. The Board advised Petitioner in its letter dated 12 April 2018 that his third petition was disapproved. 2. On an order (hereinafter Remand Order) from the remanded to the BCNR to review and consider, inter alia, material submitted by Petitioner in support of the alleged errors or injustices identified in his complaint arising from the denial of his claim for an upgraded discharge, to address the inadequacies of its April 2018 decision, for a new advisory opinion (AO) to consider all of Petitioner’s mental health conditions, and to liberally consider all of Petitioner’s diagnosed mental health conditions in light of the guidelines promulgated in both the Kurta and Hagel Memos. Petitioner contended that BCNR committed error as a matter of law when it failed to properly apply the Hagel and Kurta standards to his upgrade application. Petitioner currently requests changes to his naval record, including, but not limited to, a discharge upgrade to a general (under honorable conditions) (“GEN”) characterization of service. 3. The Board, consisting of reviewed Petitioner’s application containing certain allegations of error and injustice on 11 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, Petitioner’s 2017-18 BCNR case file, relevant portions of his naval service records and medical records, and applicable statutes, regulations, policies, as well as the revised 2020 AO from a qualified mental health provider, and Petitioner’s materials in rebuttal to the original 2017 AO. 4. 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 regulation within the Department of the Navy. b. Petitioner enlisted in the Navy and began a period of active-duty service on 17 November 1989 at the age of eighteen. On Petitioner’s pre-enlistment physical, he denied any mental health history. On 5 December 1989, Petitioner received a “Page 13” counseling warning (Page 13) for failing to obey a lawful order. On 11 January 1990, Petitioner received non-judicial punishment (NJP) for dereliction of duty by willfully failing to stand his compartment watch. Following his NJP, Petitioner received another Page 13 counseling/retention warning. On 25 January 1990, Petitioner received NJP for being absent from his appointed place of duty, failing to obey a lawful written order by drinking alcohol underage, and wrongfully communicating a threat. c. On 6 February 1990, Petitioner underwent an outpatient mental health evaluation at the diagnosed Petitioner with a passive-aggressive personality disorder with narcissistic traits. The MO recommended Petitioner’s expeditious discharge from the Navy due to his “persistent inability to adapt to military rules and regulations as well as his chronic, severe, and maladaptive interpersonal difficulties.” However, Petitioner’s command did not take immediate steps to process him for administrative separation. On 8 February 1990, Petitioner received NJP for unauthorized absence by being absent from his appointed place of duty in excess of four hours. d. On 13 February 1990, Petitioner was admitted to the psychiatric ward following a suicidal gesture and discharged the following day. Petitioner’s diagnostic impressions on admission were Axis I: Adjustment Disorder, Rule-Out Malingering; Axis II: Personality Disorder, Not Otherwise Specified; Axis III: status-post suicide gesture. On 14 February 1990, the Ward Attending Psychiatrist (WAP), evaluated Petitioner and noted his suicidal ideation had resolved, and Petitioner stated that, whether he received an OTH or general discharge “he planned to live.” The WAP’s impression was a mixed personality disorder, and his recommendation was for discharge “from USN-fastest way.” Petitioner’s final discharge recommendations included: “fit but unsuitable for USN,”“member accountable and responsible”; and “recommend Entry Level Separation for personality disorder.” e. Following his discharge from the psychiatric ward, on 27 February 1990 the Petitioner was notified that he was being processed for an administrative discharge for misconduct due to a pattern of misconduct, and misconduct due to the commission of a serious offense. Petitioner’s command elected to process him for misconduct in lieu of seeking an uncharacterized entry-level separation (ELS) for a condition not amounting to a disability. Petitioner did not consult with counsel and elected in writing to waive his right to present his case to an administrative separation board. On 3 March 1990, Petitioner’s commanding officer recommended his separation with an “other than honorable”(OTH) characterization of service. Ultimately, on 4 April 1990, Petitioner was discharged from the Navy for misconduct with an OTH characterization of service and assigned an RE-4 reentry code. The Board specifically noted that, on Petitioner’s DD Form 214, the narrative reason for separation was “Misconduct – Commission of a Serious Offense,” and the separation code was “HKA,”which corresponds to an administrative separation case involving a pattern of misconduct with a board waiver. At the time of his OTH discharge, Petitioner had served a total of four months and 21 days of active-duty service. f. On 5 May 1993, the Naval Discharge Review Board (NDRB) denied Petitioner relief. The NDRB determined that Petitioner’s discharge was proper as issued and that no relief was warranted. g. On 13 January 1995, the Department of Veterans Affairs (VA) examined Petitioner as part of a disability evaluation for compensation and pension (C&P). The VA physician diagnosed Petitioner with an adjustment disorder with depressed mood. Ten years later, on 31 March 2005, Petitioner was diagnosed with bipolar disorder. On 16 June 2017, Petitioner was diagnosed with both post-traumatic stress disorder (PTSD) and bipolar disorder. h. In short, Petitioner contends that he was suffering from service-connected mental health issues resulting from exposure to certain traumatic events in initial recruit training (“boot camp”), namely, witnessing two attempted suicides by fellow Sailors. Petitioner essentially argues that the Board must give liberal consideration and view his mental health conditions as mitigating factors to the misconduct underlying his discharge and upgrade his characterization of service. i. As part of the Board’s review, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions, the available records, and all of the relevant medical documentation, and issued an AO on 22 May 2020. The MD observed and noted that: (a) during his enlistment, Petitioner was diagnosed with adjustment disorder, passive-aggressive personality disorder with narcissistic traits, and personality disorder, not otherwise specified, (b) in 1995 during his VA C&P examination, he was diagnosed with an adjustment disorder with depressed mood, and (c) Petitioner provided post-discharge civilian mental health records documenting he was diagnosed with bipolar disorder in 2005 and PTSD in 2017. j. The MD was aware that the Remand Order noted that the original BUMED AO ignored certain requirements under the Kurta Memo and that the parties to the litigation agreed certain deficiencies in the administrative record should be addressed. In formulating his opinion, the MD considered all of Petitioner’s diagnosed mental health conditions and the relevant medical records, and specifically noted that his AO addressed the first three questions of the Kurta Memo. The MD left the fourth Kurta Memo question, “Does the condition or experience outweigh the discharge?” for the Board to consider during its deliberations as it was not an appropriate question to be answered with a medical AO. k. Based on the available evidence, the MD opined that there was sufficient evidence to demonstrate the existence of in-service mental health conditions of adjustment disorder with depressed mood, and a passive-aggressive personality disorder with narcissistic traits. The MD also noted that Petitioner stated he experienced traumatic in-service incidents that resulted in a 2017 PTSD diagnosis. Regarding Petitioner’s 2005 bipolar disorder diagnosis, the MD concluded that there is no available medical evidence or contention linking this mental health condition to his military service. The MD concluded by opining that there was sufficient evidence that Petitioner’s misconduct was at least partially mitigated by his diagnoses of adjustment disorder and claimed PTSD. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants 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 reachingfair 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 notes 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 and after reviewing the case through the lens of the liberal consideration standard, the Board determined that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize his discharge. The Board also concluded that Petitioner’s mental health conditions and their related symptoms as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of his misconduct. With that, the Board concluded that no useful purpose is served by continuing to characterize Petitioner’s service as having been under OTH conditions, and that a GEN discharge under these circumstances is appropriate at this time. Notwithstanding the recommended corrective action below, the Board considered whether the circumstances of Petitioner’s case merit an honorable discharge. Although neither the reconsideration petition filed before the BCNR in 2017, nor the complaint filed in the Eastern District of in 2018 sought this specific corrective action, the board nevertheless found it in the interests of justice to consider whether an honorable discharge was appropriate in this case. Regrettably, however, the Board was not willing to grant an honorable discharge characterization. In declining this additional characterization upgrade, the Board determined that Petitioner’s record was not otherwise so meritorious to warrant 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 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 upgraded 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 remand case was received by the Board on or about 28 March 2019. 5. 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. 6. 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.