Docket No. 3668-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , , USN 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,” 3 September 2014 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,” 24 February 2016 (d) USD Memo, “Clarifying Guidance to Military Discharge Review Boards and 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,” 25 August 2017 Memo) (e) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 (Memo) Encl: (1) DD Form 149 with attachments (2) Case Summary (3) Mental Health Condition Advisory Opinion, Docket No: NR20190003668, 22 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 , reviewed Petitioner's allegations of error and injustice on 12 August 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, to include an advisory opinion (AO) provided by a qualified mental health profession (enclosure (3)); relevant portions of Petitioner’s 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. Petitioner enlisted in the Navy and began a period of active service on 25 February 1992. On 3 February 1995, Petitioner was convicted at a special court-martial (SPCM), pursuant to his pleas, of two specifications of unauthorized absence (UA) lasting forty-four and eight days, respectively, in violation of Article 86, Uniform Code of Military Justice (UCMJ), as well as the wrongful use of a controlled substance in violation of Article 112a, UCMJ, and breaking restriction in violation of Article 134, UCMJ. Petitioner was sentenced to four months confinement, forfeiture of pay, reduction to the lowest pay grade, and a bad-conduct discharge (BCD). Following the completion of appellate review of Petitioner’s SPCM conviction, the Petitioner was discharged from the Navy with a BCD on 26 September 1996. d. On 6 November 2008, the Naval Discharge Review Board (NDRB) upgraded Petitioner’s BCD to an under other than honorable conditions (OTH) discharge. The NDRB determined that while the Petitioner’s offenses were serious, they did not warrant a BCD. On 17 November 2010, the NDRB declined to further upgrade the Petitioner’s OTH characterization of service. The NDRB determined the Petitioner’s medical conditions were not mitigating factors in his misconduct and that his conduct, which formed the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member. e. On 23 August 2018, the Department of Veterans Affairs (VA) determined that Petitioner was insane at the time in question. The VA concluded that it was at least as likely as not that the UA periods, or, as applicable, Petitioner’s other offenses were the result of an acquired psychiatric disability, and that such psychiatric disability caused a prolonged deviation from his normal behavior. Accordingly, the VA determined the entirety of Petitioner’s naval service to be Honorable for VA purposes, contrary to his naval service records. f. Petitioner contends that he was suffering from a service-connected mental health condition, and that the behaviors which resulted in his court-martial and punitive discharge were influenced by this condition that he could not control. The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. g. As part of the review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO dated 22 June 2020. The AO initially observed Petitioner’s in-service medical records provided evidence of a personality disorder diagnosis and inpatient psychiatric hospitalization, but no other mental health conditions, and that Petitioner presented evidence of post-discharge psychiatric diagnoses to include bipolar disorder, panic disorder with agoraphobia, paranoia, personality disorder with antisocial and narcissistic features, ADHD, and cannabis/alcohol/opioid dependence, along with a clinical opinion that the bipolar disorder originated during his military service and led to his in-service misconduct. The AO ultimately opined that Petitioner presented credible evidence that he exhibited “the beginnings of a serious mental health condition during his military service, and that this mental health condition may have mitigated Petitioner’s misconduct.” CONCLUSION: The Board reviewed Petitioner’s application under the guidance provided in references (b) through (e). In keeping with the letter and spirit of the policy guidance provided by these references, the Board felt that Petitioner’s diagnosed mental health conditions mitigated the misconduct used to characterize his discharge. Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board also concluded that the Petitioner’s mental health conditions and related symptoms as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as OTH, and that an upgrade to a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of virtually all veterans’ benefits. Notwithstanding the recommended corrective action below and even applying the liberal standard of review provided by references (b) through (e), the Board was unwilling to upgrade Petitioner’s characterization of service to Honorable. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. Even considering that flawless service is not required for an honorable discharge, as directed by reference (e), the Board felt that a GEN discharge is appropriate in Petitioner’s case under the totality of the circumstances. In this regard, the Board noted that Petitioner committed misconduct significant enough to warrant a SPCM conviction and a BCD, and the evidence suggests that he had not yet manifested the significant mental health conditions that have since developed at the time of his misconduct. Even assuming that the beginnings of Petitioner’s mental health conditions mitigated his misconduct, the Board concluded that it mitigated Petitioner’s misconduct only such as to warrant upgrade to a GEN discharge. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner’s DD Form 214 be corrected such as to reflect the characterization of Petitioner’s service as “General (Under Honorable Conditions)”; the separation authority changed to “MILPERSMAN 1910-164”; the separation code changed to “JFF”; the narrative reason for separation changed to “Secretarial Authority”; and the reentry code be changed to “RE-1J.” That Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, reflecting the above referenced corrections. 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 1 April 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.