DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5846-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Psychiatric Advisor CORB letter 1920 CORB: 002 of 7 April 2020 (3) Director CORB letter 1910 CORB: 001 of 14 April 2020 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 Petitioner’s naval record be corrected to change his narrative reason for separation to disability or place him on the disability retirement with associated changes to his separation code and payment of back pay and allowances. Petitioner also requested that his case be referred to the Physical Evaluation Board for consideration of his disability conditions. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 9 July 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 the naval 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. Petitioner entered active duty with the Marine Corps in January 1994 and served through the end of his obligated service in 1998. During his enlistment, he asserts that he was injured in a HUMVEE and was assaulted while serving in . In October 1999, Petitioner reentered active duty as an Air Intelligence Officer. In 2003, he asserts suffering from concussive and psychological trauma while deployed to . He also asserts suffering from psychological stress during service in . Stress resulted from his military service and a deteriorating personal relationship with his spouse. c. During a period ofpersonal leave to his parent’s house in December 2004, Petitioner was arrested due to an alcohol related assault involving his parents. Charges were eventually dropped by civilian authorities, in part, based on a psychological evaluation which determined Petitioner was not fully conscious during the assault due to his Post-Traumatic Stress Disorder (PTSD). Petitioner was previously diagnosed with PTSD by the military but determined to be psychiatrically fit for duty as of April 2005. Based on his misconduct, Petitioner submitted his resignation request and was discharged on 4 November 2004. His DD Form 214 documented “Resignation (Unacceptable conduct)” as his narrative reason for separation and assigned a separation code consistent with that reason. d. Post-discharge, the Department of Veterans Affairs rated Petitioner at 50% for his service connected disability condition(s). Petitioner also presented evidence that he struggled to obtain suitable employment due to his mental health status and medication prescribed to control his symptoms. e. In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to change his narrative reason for separation to disability or place him on the disability retirement list determined that the evidence supports partial relief. The opinion states that despite finding insufficient evidence to support any military disability benefits, the evidence does support changing his narrative reason for separation to Secretarial Authority due to his PTSD diagnosis and the mitigation it offers regarding his misconduct. Petitioner provided rebuttal evidence arguing that the Board has an obligation to correct Petitioner’s record in order to address the failure of the military to diagnose him in a timely manner which led to a number of negative consequences including his misconduct and post-discharge employment issues. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting relief. In this regard, the Board concurred with the Advisory Opinions at enclosures (2) and (3). Specifically, the Board determined that the preponderance of the evidence supports changing Petitioner’s narrative reason for separation to secretarial authority. In the Board’s opinion, the preponderance of theevidence supports a finding that Petitioner’s PTSD contributed to his misconduct that formed the basis for resignation from the Marine Corps. While the Board concluded the evidence did not show Petitioner was not mentally responsible for his misconduct, they believed his PTSD played a significant role based on medical evidence presented in his civilian criminal case. As such, they determined the interests of justice merit changing his narrative reason for separation to secretarial authority to mitigate his misconduct based discharge. In changing Petitioner’s narrative reason to secretarial authority, the Board felt it adequately addressed any existing injustice in his case when balanced against the seriousness of the misconduct he committed. In order to reach this conclusion, the Board applied liberal consideration to the facts of Petitioner’s case and considered his post-discharge employment difficulties along with his existing mental health condition. However, the Board did not find Petitioner’s argument regarding the Marine Corps’ failure to diagnose him in a timely manner persuasive since the evidence showed Petitioner was being treated for his psychological issues prior to incident of misconduct in December 2004. Further, the Board determined that Petitioner’s alcohol abuse was a significant contributing factor to his misconduct based on his .225 blood alcohol content documented after the incident. Despite finding the circumstances of Petitioner’s PTSD condition merited changing his narrative reason for separation, the Board concluded the preponderance of the evidence does not support changing it to disability. In order to qualify for a disability discharge or be placed on the disability retirement list, a service member must be unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition. In Petitioner’s case, he was found psychiatrically fit for full duty six months prior to his discharge from the Marine Corps with no indication he was unable to perform his military duties. The Board determined the only reason he did not continue his military career was due to his misconduct. Additionally, the Board noted Petitioner was able to obtain post-discharge employment in a similar field to his military specialty which indicated that he was qualified to continue performing those duties. So despite his failure to meet waiver standards to perform those duties in an overseas assignment due to prescribed medication, the evidence shows Petitioner remained qualified to work in his specialty. These factors led the Board to conclude insufficient evidence exists to support a disability discharge or placement on the disability retirement list. As such, the Board concluded there was no basis for sending Petitioner to the PEB and no back pay or allowances was warranted. In making this finding, the Board also considered Petitioner’s VA rating but concluded it was not probative on the issue of fitness for continued naval service since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing Petitioner’s narrative reason for separation to “secretarial authority” and his SPD code to “JFF.” Petitioner will be issued a new DD Form 214. 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.