Docket No: 6802-19 Ref: Signature Date 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 PTSD,” of 3 September 2014 (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) 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 (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 Encl: (1) DD Form 149 with attachments (2) Case Summary (3) Advisory Opinion, Docket No: NR20190006802 of 28 Oct 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 his naval record be corrected to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 4 December 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 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. c. Petitioner enlisted in the Navy on 22 February 2001. On 19 October 2001, four fingers on his left hand were crushed when a hatch, which had not been adequately secured, fell on his hand while he was passing through a scuttle during the course of his duties. On 21 October 2001, Petitioner had surgery on his hand and was placed on medical hold until 27 November 2001. On 16 November 2001, he received nonjudicial punishment for wrongful use of marijuana. d. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to drug abuse. After he waived his procedural rights, Petitioner’s commanding officer recommended administrative separation by reason of misconduct with an other than honorable (OTH) character of service. The discharge authority concurred and directed Petitioner be discharged with an OTH character of service due to misconduct. Petitioner was discharged on 31 December 2001. e. Petitioner contends he was emotionally distressed after his injury and surgery, “made one mistake, and was discharged.” He further contends he was an outstanding performer before the injury. Petitioner contends he was in “an emotional crisis” and a group of friends came to visit him at the Navy Lodge where he was convalescing. The friends unfortunately brought alcohol and marijuana. f. Petitioner desires to become a naturalized citizen and requests an upgraded discharge so he can apply to the Immigration and Naturalization Board. He currently serves as a corporate manager for 12 restaurants and, as supporting documentation, his employer and a restaurant owner submitted advocacy letters describing Petitioner’s outstanding character. g. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided enclosure (3). The AO states his in-service records do not contain direct or indirect evidence of a diagnosis of a mental health condition or psychological/behavioral changes that may have indicated any mental health condition. Based on the available evidence, the AO concludes the preponderance of available objective evidence does not support the contention Petitioner suffered from a mental health condition at the time of his military service or that his misconduct may be attributable to a mental health condition. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board noted Petitioner’s pursuit of citizenship, his post-service employment, and advocacy letters. Applying liberal consideration and relying on reference (e), the Board concluded Petitioner’s request warranted clemency in the form of the requested upgrade to his characterization of service. In the interest of justice and in light of the potential for future negative implications, the Board determined Petitioner’s narrative reason, separation code, and separation authority should be changed to “secretarial authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “general, under honorable conditions,” narrative reason for separation as “secretarial authority,” separation code as “JFF,” and separation authority as “MILPERSMAN 1910-164.” 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.