Docket No: 3514-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF 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 Sep 14 (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 Feb 16 (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 Aug 17 (e) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 Jul 2018 Encl: (1) DD Form 149 with attachments (2) Case Summary (3) Mental Health Condition Advisory Opinion, Docket No: NR20190003514 of 5 June 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) requesting to change the characterization of his discharge to honorable. Enclosures (1) through (3) apply. 2. The Board, consisting of , , and , reviewed Petitioner's petition containing certain allegations of error and injustice on 24 July 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, applicable statutes, regulations, policies, and an advisory opinion (AO) from a qualified mental health professional. 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. Petitioner originally enlisted in the Navy and began a period of active service on 25 July 2001. On 4 June 2002, Petitioner reported for duty on board the USS in . In July 2002, the Petitioner was physically assaulted by four fellow shipmates. c. On 26 August 2003, the Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ). On 24 March 2004, the Petitioner again received NJP for the wrongful use of cocaine in violation of Article 112a, UCMJ, UA in violation of Article 86, UCMJ, and larceny in violation of Article 121, UCMJ. d. On 25 March 2004, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct, specifically drug abuse and commission of a serious offense. The Petitioner waived his rights to consult with counsel, to submit statements to the separation authority, and to request an administrative separation board. Ultimately, Petitioner was discharged from the Navy under other than honorable conditions (OTH) on 22 April 2004 for misconduct and assigned an RE-4 reentry code. On 5 October 2011, the Naval Discharge Review Board (NDRB) denied Petitioner’s request to upgrade the characterization of his service from OTH to General (Under Honorable Conditions). The NDRB determined that Petitioner’s discharge was proper as issued and that no change was warranted. e. The evidence reflects that Petitioner received treatment for a mental health condition prior to his discharge due to symptoms arising from the July 2002 assault. He has been diagnosed with post-traumatic stress disorder (PTSD). The implication is that the behaviors which resulted in Petitioner’s OTH discharge were attributable to the PTSD that he was suffering from at the time, and that the Board should view his mental health condition and symptoms as a mitigating factor to the misconduct underlying his discharge and therefore upgrade his characterization of service. f. 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 available records, and issued a favorable AO dated 5 June 2020. The MD observed that Petitioner’s in-service medical records contained numerous clinical entries documenting the July 2002 assault and the subsequent mental health treatments and diagnoses that arose from it. Specifically, the medical records reflected diagnoses of PTSD, anxiety disorder, and alcohol abuse resulting from the July 2002 assault. The MD opined that Petitioner’s drug use was consistent with a maladaptive coping strategy frequently found in PTSD, that there is more than sufficient evidence that Petitioner suffered from PTSD resulting from his military service, and that his misconduct could be attributed to PTSD. CONCLUSION: The Board reviewed this 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. Upon review and liberal consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. The purpose of reference (b) is to ease the process for veterans seeking redress and to assist Boards for Correction of Military/Naval Records (BCM/NR) “in reaching fair and consistent results in these difficult cases.” The memorandum describes the difficulty veterans face in “upgrading their discharges based on claims of previously unrecognized” mental health conditions. The memorandum further explains that because certain 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), providing clarifying guidance to review boards with the goal of achieving greater uniformity between the services and to better inform veterans about how to achieve relief in these types of cases. Similarly, the intent of reference (e) is to simplify the process for veterans seeking redress and assist BCM/NRs “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 condition mitigated the misconduct upon which his discharge characterize was based. The Board also concluded that the severity of Petitioner’s misconduct that resulted in his discharge did not outweigh his mental health condition and related symptoms as possible causative factors to his misconduct. Accordingly, the Board found that the continued characterization of Petitioner’s service as OTH serves no useful purpose, and that a discharge upgrade to honorable under these circumstances is appropriate at this time. The Board also determined that additional conforming relief was in order to ensure consistency on the Petitioner’s DD Form 214. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: Petitioner shall be issued a new DD Form 214 indicating character of service changed to “Honorable”; the separation authority changed to “MILPERSMAN 1910-164”; the separation code be changed to “JFF”; the narrative reason for separation changed to “Secretarial Authority”; and the reentry code be changed to “RE-1J.” Petitioner shall be issued an 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 received by the Board on or about 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.