Docket No: 5669-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER Ref: (a) 10 U.S.C. § 1552 (b) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 (c) 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,” of 25 August 2017 Encl: (1) DD Form 149 with attachments (2) Case summary (3) Advisory Opinion, Docket No: NR20190005669 of 30 Sep 20 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 14 October 2020, and, pursuant to its regulations, determined 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, applicable statutes, regulations, and policies, as well as the enclosed advisory opinion (AO) from a qualified mental health provider. 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 review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 25 January 1983. Petitioner subsequently completed this enlistment with an Honorable characterization of service on 21 January 1988 and reenlisted on the same date. During the period from on or about April 1994 to August 1996, Petitioner’s in-service medical records revealed Petitioner was diagnosed with major depressive episode and human immunodeficiency virus (HIV). Petitioner received treatment, which included psychotherapy and anti-depressant medications. On 14 March 1997, Petitioner received non-judicial punishment (NJP) for wrongful use of a controlled substance. Although Petitioner’s administrative separation documentation, is not in the service record, based on the DD Form 214, Petitioner was discharged on 26 March 1997, with a general (under honorable conditions) characterization of service by reason of misconduct. d. Petitioner contends that despite his medical condition, he continued to perform well until he was transferred back to his previous command. “The confidentiality surrounding his HIV/AIDS status was breached by command medical representatives, and others in his chain-of-command.” He became “shunned” by his peers and chain of command, receiving ongoing harassment, such as notes’ left on his car window calling him a “diseased faggot.” Petitioner further states he reported these incidents to his command, nothing was done to address the harassment or protect him. He developed increasing depressive symptoms resulting in a diagnosis of Major Depressive Episode and treatment with psychotropic medications (Zoloft and Prozac) and psychotherapy at Naval Medical Center psychiatry department. e. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 30 September 2020. The AO states that, Petitioner’s in-service records contain diagnoses and treatment of HIV/AIDS (as both an outpatient and inpatient) and Major Depressive Episode (with psychotherapy and psychotropic medications). The psychological trauma he described from the diagnosis of HIV/AIDS is consistent with reported psychiatric literature of the (as HIV/AIDS had no effective treatment and was considered a terminal illness). Additional stressors from the social ostracism, command discrimination against service member with HIV/AIDS was also common. Petitioner’s range of psychological symptoms comprising his Major Depression are well documented in the service medical records, including the specific symptoms that led to his self-medication strategy of alcohol and then methamphetamine use. Petitioner attributed the use of the methamphetamines to the psychological symptoms and stressors associated with his diagnoses of HIV/AIDS and Major Depression. Notably, Petitioner remained a “4.0” sailor for almost a decade after his in-service diagnosis of HIV/AIDS. It was not until his experiences at ACB-1 (his command), that his performance began to deteriorate and he developed his mental health condition ultimately leading to his misconduct and discharge. Therefore, based on the available objective evidence, it is my considered medical opinion that there is sufficient evidence that Petitioner developed a diagnosable mental health condition as a result of his military service and that his misconduct may be mitigated by his traumatic experience of HIV/AIDS diagnosis and ensuring Major Depressive Episode. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. The Board reviewed his application under the guidance provided in references (b) and (c). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards 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, since 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. The Board, applying liberal consideration, noting the absence of other misconduct, and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner’s mental health condition mitigated the misconduct that led to his administrative discharge. In the interest of justice and in light of the potential for future negative implications, the Board determined Petitioner’s characterization of service should be changed to “honorable,” narrative reason, separation code, and separation authority should be changed to “secretarial authority.” The Board also determined it was in the interest of justice to assign Petitioner a “RE-1J” reentry code. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating that on 26 March 1997 his character of service was “honorable,” narrative reason for separation was “Secretarial Authority,” the SPD code assigned was “JFF,” the reenlistment code was “RE-1J,” and the separation authority was “MILPERSMAN 1910-164.” 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 5 June 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 Regulation, 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.