DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 52-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo of 3 Sep 14 “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by eterans Claiming Post Traumatic Stress Disorder” (c) PDUSD Memo of 24 Feb 16 “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) USD Memo of 25 Aug 17 “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” (e) USECDEF Memo of 25 Jul 18 “Guidance to Military Discharge Review Boards and Boards for correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 w/ attachments (2) Mental Health Condition Advisory Opinion, Docket No: (3) Updated Mental Health Condition Advisory Opinion, Docket No: 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) requesting an upgrade to his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 30 January 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 records and his medical records, applicable statutes, regulations, policies, advisory opinions (AO) from a mental health provider, and the Petitioner’s materials in rebuttal. 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. Regarding the 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 the case based on the evidence of record. d. At the time of Petitioner’s enlistment into the Navy, Petitioner’s legal name was “” On 13 March 1989, Petitioner received an other than honorable (OTH) discharge from the Navy. In this regard, Petitioner was issued a Certificate of Release or Discharge from e. Petitioner initially enlisted in the Navy and began a second period of active service on 3 march 1987. On 6 December 1988, the Petitioner went to non-judicial punishment (NJP) for the wrongful use of cocaine. The Petitioner was found guilty and did not appeal his punishment. f. On 6 December 1988, Petitioner’s command initiated an administrative action to separate him for misconduct due to drug abuse. The Petitioner elected in writing to waive his rights to consult with counsel and to present his case to an administrative discharge board. On 17 February 1989, Navy Personnel Command directed the Petitioner’s discharge under OTH conditions. Ultimately, on 13 March 1989, Petitioner was separated from the Navy with an OTH characterization of service. On 28 March 2002, the Naval Discharge Review Board determined that Petitioner’s OTH discharge was proper as issued and that no change was warranted. g. In short, Petitioner contended that he was suffering from: (a) post-traumatic stress disorder (PTSD) as a result of two traumatic back-to-back events he experienced at sea, (b) traumatic brain injury (TBI) as a result of a motor vehicle accident, and (c) undiagnosed bipolar disorder on active duty(collectively, “mental health conditions”). The Petitioner argued that the Board must view his mental health conditions as a mitigating factor to his one-time drug use to self-medicate and upgrade his discharge. h. As part of the review process, a Navy Medical Officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records. The NMO issued an AO dated 16 August 2019, observing that Petitioner provided post-service medical records indicating that he has PTSD and bipolar disorder diagnoses. The NMO concluded that it was possible, but less likely than not, that cocaine use could be attributed to residual symptoms of a TBI, and opined that there was insufficient evidence to attribute Petitioner’s misconduct to a mental health condition incurred during military service. In rebuttal to the AO, the Petitioner provided an assessment from a licensed psychologist (PhD) dated 1 December 2019. The PhD noted that alcohol and drug use are common in any mentally ill person (particularly men) as a means of self-medication when they are not seeking appropriate treatment, as was the Petitioner’s case. The PhD opined that Petitioner’s cocaine use as well as all of his demonstrated psychiatric symptoms were the result of his mild concussion from the car accident and the two traumatic events which occurred while doing his job in the Navy. The NMO issued an updated AO in response to Petitioner’s rebuttal, noting that there was no new medical documentation provided, and that her opinion that there was insufficient evidence had not changed. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his 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 the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “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 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), provide 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 the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “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, theBoard felt that Petitioner’s diagnosed mental health conditions mitigated the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD, TBI and bipolar-related conditions 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 a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record, given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits a GEN characterization of service, and that the reentry/reenlistment code should remain “RE-4.” RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner’s characterization of service be changed to “General (Under Honorable Conditions),” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty (with a separation date of 13 March 1989), with the aforementioned corrections which Petitioner shall be issued a new General (Under Honorable Conditions) Discharge Certificate which reflects the name 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 21 November 2018. 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.