DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 409-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 1900.16 (MARCORSEPMAN) (c) MCO 1070.12K (IRAM) Encl:(1) DD Form 149 w/attachments (2) HQMC memo 1070 JPL of 11 Apr 19 1. Pursuant to reference ( a), Petitioner, a staff non-commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his 15 May 2017 Administrative Remarks (Page 11) counseling entry from his official military personnel file (OMPF). 2. The Board reviewed Petitioner's allegations of error and injustice on 3 December 2019 and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence ofrecord. The names and votes of the members of the panel will be furnished upon request. As noted below, the Executive Director believes, contrary to the Board, that partial relief is appropriate. Documentary material considered by the Board consisted of Petitioner's application, together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, as well as the enclosed 11 April 2019, advisory opinion (AO) furnished by the Staff Judge Advocate to the Commandant of the Marine Corps (JPL). The AO was provided to Petitioner on 24 April 2019, and he was given 30 days in which to submit a response. When he did not provide a response, his case was submitted to the Board for consideration. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found that, before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. The Board made the following findings: a. On 15 May 2017, pursuant to paragraph 6105 of reference (b), Petitioner was issued a Page 11 entry counseling him for taking, on 15 March 2017, excessive amounts (ten 150mg tablets) of a medicine (Wellbutrin) prescribed to relieve his depression and anxiety, which rendered him ineffective for six days. The entry states that this incident was deemed a suicide attempt on hospital paperwork by Petitioner. b. Petitioner signed the entry, acknowledging the counseling, but elected not to submit a statement in rebuttal. His commanding officer (CO) countersigned the entry. The entry was then entered into Petitioner's OMPF. c. Petitioner applied to the Board, requesting that the entry be removed from his record. Petitioner contends that the Page 11 entry was improperly issued because he sought and received mental health assistance, and that it violates the disclosure prohibitions of the Health Insurance Portability and Accountability Act (HIP AA) BOARD CONCLUSION: The Board determined that the evidence was insufficient to establish the existence of probable material error or injustice. The Board considered Petitioner's contentions but substantially concurred with the AO that the contested entry was not issued because Petitioner sought and received mental health treatment, and that it did not violate the HIPAA. First, the Board found no evidence that the contested entry was issued because Petitioner sought or received mental health treatment. Instead, the Board determined that the entry was issued to address Petitioner's misconduct in taking more than the prescribed dose of his medication, which resulted in his incapacitation for duty for six days. Second, the Board noted that the HIP AA protects the disclosure, with some exceptions, of certain personal health information (PHI) by health care providers. One exception is the military command exception, which permits PHI to be disclosed to command authorities for authorized activities, including determinations of fitness for duty, fitness to perform a particular assignment, or other activities necessary for the military mission. Petitioner's CO's use of the information in counseling Petitioner was not improper because the CO had an official need to know-the information was directly related to Petitioner's fitness for duty, to the good order and discipline of his unit, and to his unit's readiness. The Board further noted that, because Petitioner's CO is not a health care provider, his disclosure of any PHI of Petitioner is not a violation of the HIPAA. Finally, the Board determined that the entry was written and issued in accordance with reference (c). The Board specifically noted that the entry provided written notification concerning Petitioner's deficiencies, recommendations for corrective action, where to find assistance, and consequences for failure to take corrective action; it afforded Petitioner the opportunity to submit a rebuttal; and his CO signed the entry. Moreover, the entry creates a permanent record of a matter Petitioner's CO deemed significant enough to document, and as Petitioner's CO, he was well within his authority to issue the counseling entry. Therefore, the Board determined that there is no material error or injustice warranting corrective action. BOARD RECOMMENDATION: That Petitioner's request for correction to his record be denied, and that no corrective action be taken. EXECUTIVE DIRECTOR CONCLUSION: Taking into account the findings of the Board, the Executive Director determined that partial corrective action is nevertheless warranted in Petitioner's case. The Executive Director generally concurred with the Board's findings, conclusions, and recommendation, but concluded that the contested Page 11 entry in its present form, while not itself in error or unjust, contains unnecessary, inappropriate, duplicative, and therefore unjust language that should be removed as improper. In particular, the Executive Director determined that the entire following paragraph of the entry violates the requirement ofreference (c) that Page 11 entries be limited to matters forming a permanent and essential part of a Marine's military history, which are not-or cannot be-recorded elsewhere in the Marine's service record book or medical records, and which will be useful to future commanders: On 15 March 2017 you took 10 150mg Wellbutrin pills that you were prescribed to help with your depression and anxiety. As a result you had adverse side effects requiring medical attention and which you deemed a suicide attempt on hospital paperwork. In this regard, the Executive Director noted that the type of medication Petitioner was prescribed, the mental health conditions for which it was prescribed, and Petitioner's patient history ("deemed a suicide attempt on hospital paperwork") are not matters that form a permanent and essential part of his military history, are not useful to future commanders, and, most pertinently, could be-and more than likely are-recorded in his medical records. Moreover, in light of the fact that the paragraph above largely reiterates, with these additional but improper details, the essential elements of Petitioner's misconduct as set forth in the entry's first paragraph, the Executive Director concluded that the paragraph above is unjust and should be removed from the entry. For the foregoing reasons, the Executive Director also determined that the phrase "your weekly therapy visits" violates the requirement of reference (c) that Page 11 entries be limited to matters forming a permanent and essential part of a Marine's military history, which are not-or cannot be-recorded elsewhere in the Marine's service record book or medical records, and which will be useful to future commanders. Accordingly, the Executive Director concluded that the phrase is unjust and should be should be replaced with the word "you." Finally, the Executive Director concurred with the AO that the phrase "through willful negligence you were derelict in your duties" was internally inconsistent and contradictory, but disagreed that such an error was not material. Willful means intentional, and thus is more blameworthy than negligence, which means lacking the due care a reasonable person would exercise in the circumstances. Dereliction can either be willful or negligent; it cannot, however, be both at the same time. Accordingly, the Executive Director concluded that the phrase "through willful negligence" is in error and unjust, and should be removed from the entry. In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That the phrase "through willful negligence" be redacted from the first paragraph of the 15 May 2017 Page 11 entry in Petitioner's OMPF. That the second paragraph be redacted from the 15 May 2017 Page 11 entry in Petitioner's OMPF. That the phrase "your weekly therapy visits" in the fourth paragraph of the 15 May 2017 Page 11 entry in Petitioner's OMPF be changed to "you." That no further corrective action be taken. 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. The foregoing action of the Board is submitted for your review and action.