From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (c) PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI,” of 24 February 2016 (d) USD Memo, “Clarifying Guidance to Military Discharge Review Boards and 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 (Kurta Memo) (e) 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 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Corrections of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 20 November 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to Petitioner. Although Petitioner was afforded an opportunity to submit a rebuttal, Petitioner did not do so. 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 in accordance with the Kurta Memo. c. The Petitioner enlisted in the Navy and began a period of active service on 13 December 2001. Petitioner’s pre-enlistment physical and medical history noted no psychological or neurological abnormalities, conditions, or symptoms. On 3 March 2003, the Petitioner commenced a period of unauthorized absence (UA) that terminated by his surrender after 126 days on 7 July 2003. The command chose not to take any disciplinary action for the UA and opted instead to administratively add the UA duration day-for-day on to the end of Petitioner’s active obligated service (EAOS). d. Over two years later on 6 September 2005, Petitioner underwent a psychiatric evaluation at the . Petitioner was diagnosed with a personality disorder, not otherwise specified (NOS) with borderline and passive-aggressive traits, and partner relational problem. On 7 September 2005, the ship’s psychologist on the USS strongly recommended Petitioner’s expeditious administrative separation for unsuitability. The psychologist determined that Petitioner had a longstanding disorder of character and behavior which was of such severity as to interfere with his serving adequately in the Navy in any capacity. e. On 9 October 2005, the Petitioner was notified that he was being processed for an administrative discharge by reason of convenience of the government due to a diagnosed personality disorder, and for misconduct due to the commission of a serious offense for his 2003 UA. The Petitioner waived his rights to consult with counsel, submit a written statement to the separation authority for consideration, and to request an administrative board. On 25 October 2005 Petitioner’s commanding officer recommended an other than honorable (OTH) characterization of service. Ultimately, on 21 November 2005, the Petitioner was discharged from the Navy with a general (under honorable conditions) characterization of service (GEN) and “Misconduct Due To Commission of a Serious Offense” as the listed narrative reason for separation. The Petitioner also received an “RE-4” reentry code. f. Petitioner contended that his discharge should have been solely pursuant to a “condition not a disability” and not for misconduct. The Petitioner stated that he was undergoing mental health treatment on the ship from February 2003 until February 2005 and again starting in August 2005. The Petitioner argued that to award a discharge for misconduct was unfair considering the mitigating factors of his mental health issues as well as the fact that no disciplinary action was taken for his UA occurring more than two full years before his discharge. g. As part of the review process, the BCNR Physician Advisor who is a licensed clinical psychologist (MD), reviewed Petitioner’s contentions and the available records and issued an AO dated 8 October 2020. The MD observed that the Petitioner was diagnosed with a personality disorder, NOS with borderline and passive-aggressive traits, and partner relational problem. The MD opined that there was sufficient objective evidence that Petitioner exhibited psychological symptoms and behaviors consistent with a diagnosable personality disorder rendering him unsuitable for continued military service, and that his mental health condition reflected a life-long pattern of behavior that was not attributable to his military service. The MD concluded by opining that Petitioner’s UA was not attributable to a mental health condition that would mitigate his behavior. CONCLUSION: Upon review and liberal 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. In keeping with the letter and spirit of the Clemency Memos, the Board believed that there was an injustice in ultimately separating the Petitioner for misconduct. First, the Petitioner’s record reflects that the reason the command initiated a separation in September 2005 was strictly based on medical recommendations due to his diagnosed personality disorder and not for his 2003 misconduct. Secondly, had Petitioner been correctly processed for “condition, not a disability,” his discharge characterization would have been based on, in part, conduct and overall trait averages computed from marks assigned during periodic evaluations. The Board noted Petitioner’s overall active duty trait average in conduct (proper military behavior) during his enlistment (3.0) far exceeded the Navy’s required minimum trait average in that category (2.5) for a fully honorable characterization of service. Thirdly, the commanding officer’s recommendation made it clear that the two-year old UA was added as a separation basis only after performing a records check to support the personality disorder discharge. Lastly, had the command determined that the circumstances underlying Petitioner’s UA independently warranted an administrative separation, the command would have and/or should have done so in 2003 in lieu of making a simple administrative adjustment to his EAOS. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions. Especially in light of the Wilkie Memo, the Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that an honorable discharge is appropriate at this time. The Board also determined that it would be an injustice to label one’s discharge as being for a diagnosed character and behavior disorder. Describing Petitioner’s service in this manner attaches a considerable negative and unnecessary stigma, and fundamental fairness and medical privacy concerns dictate a change. Accordingly, the Board concluded that Petitioner’s discharge should not be labeled as being for a mental health-related condition and that certain additional remedial administrative changes are warranted to the DD Form 214. Notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s reentry code. The Board concluded the Petitioner was assigned the correct reentry code based on the totality of his circumstances, and that such reentry code was proper and in compliance with all Navy directives and policy at the time of his discharge. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “Honorable,” 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. Petitioner shall be issued a new Honorable Discharge Certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. 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.