DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4848-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER XXX-XX , USN Ref: (a) 10 U.S.C. §1552 (b) PDUSD 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” 25 August 2017 (c) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Advisory Opinion (AO) of 25 Jul 20 (3) Standard Form 513, Medical Record, Consultation Sheet, of 4 Jan 91 (4) Standard Form 600, Chronological Record of Medical Care, of 9 Jan 91 (5) Standard Form 513, Medical Record, Consultation Sheet, of 15 Jul 91 (6) Nonjudicial punishment (NJP) of 11 Jun 92 (7) Medical Record, Progress Notes, of 18 Jun 92 (8) subj: Notice of an Administrative Board Procedure (9) Admin Message dtg 191905Z Jun 92, subj: Misconduct Discharge ICO [Petitioner] (10) DD Form 214 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that the characterization of his service be upgraded to honorable, and that the narrative reason for his separation and separation code be changed accordingly. 2. The Board reviewed Petitioner's allegations of error and injustice on 2 October 2020, and pursuant to its regulations, determined that the partial corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of the Petitioner’s naval records, and applicable statutes, regulations, and policies, to include references (b) and (c). 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 interest of justice to waive the statute of limitations and consider Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 22 May 1989. See enclosure (10). d. Petitioner asserts that he was sexually molested by an older child in his neighborhood over a period of his pre-teen years. He also later developed gynecomastia, which is a condition that causes the enlargement of a male’s breasts due to hormones. Petitioner believes that he developed this condition as a result of his childhood molestation. See enclosures (1) and (4). e. In late 1989 or early 1990, Petitioner encountered his alleged molester while home on leave. Petitioner attacked his alleged molester after being approached. Subsequent to this incident, however, Petitioner experienced difficulties dealing with the painful memories of his childhood sexual abuse, and contemplated suicide. Upon his return from leave and after a this evaluation, he was referred to the and treatment. See enclosure (3). f. Petitioner was evaluated by the Psychiatry Department on 9 January 1991. In addition to his suicidal ideations arising from his encounter with his alleged molester, Petitioner also reported difficulty with shipmates who tease and taunt him regarding his condition of gynecomastia. Petitioner was encouraged to seek counseling to overcome negative feelings related to his childhood molestation. His diagnoses included “Life Circumstance Problem” and passive-dependent personality traits. He was returned to duty with consult for mental health follow-up at his homeport. See enclosure (4). g. Petitioner subsequently underwent a subcutaneous bilateral mastectomy to address the symptoms of his gynecomastia, and received a follow-up psychiatric evaluation from the Psychiatric Department on 15 July 1991. During this evaluation, Petitioner revealed that he remained insecure as to his adequacy as a man, largely because of his childhood sexual molestation experience. Petitioner was diagnosed with Personality Disorder, not otherwise specified, with passive-dependent, schizoid, and avoidant features, and found psychiatrically fit to continue full duty. See enclosure (5). h. On 11 June 1992, Petitioner received nonjudicial punishment for wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice. See enclosure (6). i. On 18 June 1992, Petitioner was referred for psychiatric evaluation and was hospitalized for 11 days due to suicidal ideations related to his childhood sexual molestation and his above referenced disciplinary action. Petitioner was diagnosed with severe Borderline Personality Disorder. This evaluation noted that Petitioner manifested a longstanding personality disorder and behavior of such severity as to render him incapable of adequate service in the Navy, and recommended an expeditious administrative separation for unsuitability. See enclosure (7). j. By memorandum dated 18 June 1992, Petitioner was notified that he was being considered for administrative discharge by reason of misconduct (drug abuse) and for the convenience of the government based on his personality disorder. Petitioner did not consult with counsel and waived his right to request to have his case be heard by an administrative discharge board, but indicated that he objected to the separation. See enclosure (8). k. By message dated 19 June 1992, the separation authority directed that Petitioner be discharged under other than honorable (OTH) conditions for misconduct (drug abuse). This message also directed that Petitioner be evaluated for drug or alcohol dependency by a physician or clinical psychologist, and that if found to be dependent to be offered 30 days of inpatient treatment via the Department of Veterans Affairs (VA) before separation. By signature dated 23 June 1992, Petitioner declined VA treatment. See enclosure (9). l. Petitioner was discharged from the Navy under OTH conditions for misconduct (drug abuse) on 22 July 1992. See enclosure (10). m. Petitioner requested that the Board upgrade his characterization of service to honorable based his belief that his prevailing mental health issues were never addressed. He asserts that while his gynecomastia was addressed surgically, the social and sexuality issues that he presented were never addressed. He explained that his drug use occurred in the wake of a failed sexual encounter, and that he simply lost reason and control. See enclosure (1). n. As part of its review process, the Board received and considered an advisory opinion (AO) from the Board’s Physician Advisor, prepared based upon his review of Petitioner’s application and medical records. The AO found direct evidence in Petitioner’s in-service records of stress due to Petitioner’s preexisting childhood sexual abuse issues and in-service harassment due to his gynecomastia. It further observed that Petitioner was appropriately diagnosed with Borderline Personality Disorder and Adjustment Disorder, offered crisis intervention therapy, and recommended for administrative separation for unsuitability on several occasions. However, the AO noted that Petitioner did not submit any clinical records or evidence of additional mental health conditions that might have been considered as mitigation for his in-service misconduct. Based upon the available evidence, the AO concluded that there was insufficient evidence that Petitioner’s diagnosed mental health condition could be attributed to his military service, or that his misconduct may be attributed to a mental health condition. See enclosure (2). CONCLUSION: Upon careful and conscientious review and consideration of all the evidence of record, the Board concluded that the Petitioner’s request warrants partial relief. Given the mental health issues asserted, the Board reviewed Petitioner’s application in accordance with the guidance of reference (b). Accordingly, the Board applied liberal consideration to Petitioner’s asserted mental health condition(s), and the effect that they may have had upon Petitioner’s misconduct. In this regard, the Board noted that Petitioner had been recommended for administrative separation for unsuitability by mental health professionals on several occasions prior to his eventual discharge for drug abuse. Notwithstanding the conclusions of the AO, the Board believed that Petitioner’s misconduct was at least somewhat mitigated by his in-service mental health condition(s). In addition to applying liberal consideration in its review of Petitioner’s application in accordance with reference (b), the Board also considered the totality of the circumstances to determine whether relief is warranted in the interest of justice in accordance with reference (c). In this regard, the Board considered, among other factors, Petitioner’s mental health conditions and the affect that they may have had upon his conduct; that Petitioner suffered from harassment and abuse from his shipmates due to his gynecomastia condition; that several mental health professionals had recommended that Petitioner be administratively separated for unsuitability prior to his separation for drugabuse; that Petitioner’s OTH discharge was based upon one instance of relatively minor misconduct of a non-violent nature; Petitioner’s otherwise honorable service during wartime; that Petitioner has experienced a heart attack and is currently suffering from kidney failure, and is otherwise unable to receive disability benefits due to his characterization of service; the character letter provided with Petitioner’s application; Petitioner’s relative youth at the time of his discharge; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, to include its determination that Petitioner’s misconduct was at least somewhat mitigated by his in-service mental health condition(s), the Board determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions). Although the Board determined that relief was warranted, it determined that the totality of the circumstances did not warrant upgrading Petitioner’s characterization of service to honorable as he requested. In this regard, the Board determined that Petitioner’s mental health conditions, while mitigating, had a very limited impact upon his conduct, and noted that the AO found that Petitioner’s misconduct was not attributed to his mental health condition. The Board also noted that Petitioner has been in legal trouble for criminal matters since his discharge, raising questions about his rehabilitation. Given the tenuous connection between Petitioner’s misconduct and his mental health conditions, the Board believed that partial relief was appropriate. RECOMMENDATION: In view of the above, the Board recommends the following corrective actions: That Petitioner be issued a new DD Form 214 reflecting that he was discharged on 22 July 1992 with a “General (under honorable conditions)” characterization of service, that the separation authority was “MILPERSMAN 1910-164,” that the reason for discharge was “Secretarial Authority,” and that the separation code was “JFF.” That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the VA is informed that Petitioner’s application was received by the Board on 23 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. The foregoing action of the Board is submitted for your review and action. ASSISTANT GENERAL COUNSEL (MANPOWER & RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Upgrade to General Discharge)