Docket No: 3550-19 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: NR20190003550 of 4 June 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 , , 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, and policies; an advisory opinion (AO) from a qualified mental health professional and Petitioner’s rebuttal to said AO which included documentation from the Department of Veterans Affairs (VA) awarding him service connection for treatment purposes only for his mental health condition, and the Petitioner’s civilian medical records tendered pursuant to a BCNR request for additional medical/clinical evidence to support his assertion of mental health conditions. 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. b. Regarding Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered his case based on the evidence of record. c. Petitioner enlisted in the Navy and began a period of active service on 29 March 1994. On Petitioner’s pre-enlistment medical records, he noted no psychological or neurological abnormalities and/or symptoms in his medical history. On 14 September 1995, the Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ), and for the failure to obey a lawful order in violation of Article 92, UCMJ. On 22 May 1996, the Petitioner received NJP for insubordinate conduct toward a petty officer in violation of Article 91, UCMJ, simple assault in violation of Article 128, UCMJ, and two specifications of communicating a threat in violation of Article 134, UCMJ. On 22 November 1996, the Petitioner received a “Page 13” counseling warning (Page 13) documenting his conduct deficiencies. The Page 13 expressly warned the Petitioner that any further deficiencies in performance and/or conduct may result in disciplinary action and in processing for administrative separation. Subsequent to this warning, on 8 January 1997 the Petitioner received NJP for UA in violation of Article 86, UCMJ. d. By memorandum dated 10 January 1997, Petitioner was notified that he was being considered for administrative separation for misconduct due to a pattern of misconduct and commission of a serious offense. On 15 January 1997, Petitioner waived his right to consult with counsel, make a written statement, and to request an administrative separation board. On 19 February 1997, Petitioner was discharged from the Navy under other than honorable conditions (OTH) for a pattern of misconduct and assigned an RE-4 reentry code. The Board specifically noted on Petitioner’s DD Form 214 that the narrative reason for separation was “Pattern of Misconduct,” and the separation code was “HKA,” which corresponds to an administrative separation case involving a pattern of misconduct with a board waiver. e. On 3 April 2020, the VA granted Petitioner “service-connection for treatment purposes only” for schizoaffective disorder, bipolar type. f. In short, Petitioner contended that he was diagnosed with a mental health condition for which he received no treatment before being separated from the Navy. It was implied that this untreated mental health condition contributed to the misconduct which resulted in his OTH discharge. g. 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. In his AO dated 4 June 2020, the MD observed that the Petitioner’s post-discharge mental health treatment records provided that his mental health condition occurred during his military service and that he was treated by military physicians. The MD opined that the psychiatric symptoms described by the Petitioner’s civilian mental health provider would account for the misconduct that was the subject of Petitioner’s disciplinary actions, to include poor judgment, insight, and aggressive behaviors. Ultimately, the MD opined that there was sufficient evidence that Petitioner incurred a mental health condition during his military service, and that the misconduct upon which his OTH discharge was based could be attributed to this condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. 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. 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 on “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 such 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 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 reference (e) is to simplify the process for veterans seeking redress and to 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 establishes 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 used to characterize his discharge. The Board also concluded that the severity of Petitioner’s misconduct was outweighed by Petitioner’s diagnosed mental health condition and its related symptoms as a possible causative factor in the misconduct contributing to his discharge and characterization. Accordingly, the Board concluded that the continued characterization of Petitioner’s service as OTH serves no useful purpose, and that an upgrade of his characterization of service to general (under honorable conditions) (GEN) under these circumstances is appropriate. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of virtually all veterans’ benefits. Although the Board found that the circumstances of this case warranted some relief, it specifically found that they did not warrant an upgrade of the Petitioner’s service to honorable as he requested. The Board unequivocally found that the Petitioner’s record was not so meritorious to merit such a characterization. Even recognizing that flawless service is not required for an honorable discharge and considering the guidance of reference (e), the Board determined that, in fairness to those Sailors who serve honorably and without adverse incidents, a GEN characterization of service was appropriate and the Petitioner’s reentry code should remain “RE-4.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner shall be issued a new DD Form 214 indicating the characterization of his service as General (Under Honorable Conditions). That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the VA be informed that Petitioner's application was received by the Board on or about 29 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.