DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6853-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER SEAMAN RECRUIT , XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) SECNAVINST 5420.193, 19 November 1997 (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,” 25 August 2017 (d) USD Memo, of, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 with attachments (2) BCNR, Advisory Opinion, 28 October 2020 (3) BCNR Docket No. 0221-18, 4 June 2019 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 characterization of service be upgraded to honorable. 2. The Board reviewed Petitioner's allegations of error and injustice on 2 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 the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies, to include references (c) and (d). 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, the statute of limitations was waived in accordance with reference (c). c. Petitioner enlisted in the Navy and began a period of active duty on 23 September 1966. d. On 24 June 1967, Petitioner received nonjudicial punishment (NJP) for missing movement in violation of Article 87, Uniform Code of Military Justice (UCMJ). e. After a period of unauthorized absence (UA) and another missed movement, Petitioner was referred for a psychiatric evaluation on 29 November 1968. Based upon this evaluation, Petitioner was diagnosed with Passive-Aggressive Personality Disorder, manifested by resentment of authority, intolerance of stress and frustration, obstructionist behavior, and inadequate control of hostile feelings. The evaluating psychiatrist recommended that Petitioner be considered for an administrative discharge if he continued to perform his assigned duties improperly or incurred further disciplinary action. f. On 9 January 1969, Petitioner was convicted by a special court-martial (SPCM) of two specifications of UA (totaling 26 days) in violation of Article 86, UCMJ, and two specifications of missing movement in violation of Article 87, UCMJ. His approved sentence included confinement at hard labor for two months, but not a punitive discharge. g. Petitioner was delivered to civilian authorities on 5 March 1969 on a warrant for a speeding violation and failure to appear charge. He was returned to military authority on 6 March 1969 after his release from the San Diego County Jail. h. Petitioner’s medical records noted insomnia and anxiety on 21 March 1969. i. Petitioner was UA from 3 June 1969 to 13 October 1969 (132 days). On 12 November 1969, Petitioner was convicted by a SPCM of violating Article 86, UCMJ, for this UA. Petitioner’s sentence included a bad-conduct discharge (BCD) and three months of confinement. j. Petitioner was released from confinement on 28 January 1970. k. Petitioner was again UA from 2 to 4 February 1970 (3 days). By memorandum dated 17 February 1970, Petitioner was granted voluntary appellate leave pending approval of his BCD. l. Petitioner was discharged from the Navy on 25 May 1970 with a BCD. Petitioner’s DD Form 214 reflects that he received the Vietnam Service Medal (VSM) with two bronze star service devices. m. On 12 January 1976, the President pardoned Petitioner’s UA conviction and granted him a “Clemency Discharge” in place of his BCD. Petitioner’s characterization of service was subsequently changed to other than honorable (OTH). n. On 23 April 1976, the Department of Veterans Affairs (VA) concluded that Petitioner’s discharge was issued under dishonorable conditions based upon his willful and persistent in-service misconduct. o. In his previous application to the Board, Petitioner requested an upgrade to his characterization of service based upon his contention that his discharge was based on less than 180 non-continuous days of UA, that Presidential Proclamation 4313 directed that discharges be characterized as honorable for service members who received decorations for valor in Vietnam, that Petitioner received two “Bronze Stars” in Vietnam, and that he never received or had knowledge of the clemency granted to him by the President nor of a due process notification hearing for his VA characterization hearing due to a wrong address. By memorandum dated 4 June 2019, Petitioner’s previous application was denied. The denial letter noted that Petitioner was UA seven times for a total of 309 days, rather than the less than 180 days that he asserted, and that Presidential Proclamation 4313 only applied to former service members who were either wounded in combat or received decorations for valor in combat, and who applied for the clemency program. It also only provided that such veterans could apply to have their characterizations reviewed on an individual basis, and directed characterization upgrades only if there was a compelling reason to the contrary. Finally, the previous denial letter noted that Petitioner was awarded the VSM with two bronze star service devices denoting his participation in the campaign, but not two Bronze Star medals as he asserted. See enclosure (3). p. In enclosure (1), Petitioner requests reconsideration of his previous petition, asserting that the Board did not properly assess his previous application. Specifically, he asserts that the Board did not assess his mental health issues in accordance with reference (c), and that the Board failed to show the calculation of the alleged 309 days missed from service. In support of his present application, Petitioner provided a copy of a claim for VA disability benefits, dated 1 May 2019, in which he asserted that his combat experience exacerbated the previously diagnosed mental health condition discussed in paragraph 3e above. He asserted that he was UA for only 54 days of his service and that he earned two Bronze Star medals. He also reiterated the difficulties that he had with Navy life that largely resulted in the above referenced diagnosis, and claimed that these mental health issues manifested themselves most significantly following major deployments and adversely affected his judgment. Finally, his VA claim reveals a number of medical conditions, for which Petitioner cannot receive VA benefits due to the characterization of his service. Petitioner’s VA claim included an evaluation from a licensed psychologist. q. As part of the Board’s review process, Petitioner’s application and in- and post-service medical records were reviewed by a licensed clinical psychologist, who provided the Board with an advisory opinion (AO). The AO noted that Petitioner’s in-service record contain evidence of a mental health issue/concern, based upon the psychiatric referrals discussed in paragraphs 3e and 3h above. The latter of these referrals described symptoms associated with a depressive disorder. Based on this review, the AO concluded that there is sufficient direct evidence Petitioner exhibited behaviors associated with depression during his military service, and that his misconduct may be mitigated by his mental health disorder. See enclosure (2). CONCLUSION: Based upon the Petitioner’s asserted mental health conditions and the conclusions of enclosure (2), Petitioner’s application was reviewed in accordance with the guidance of reference (c). As such, the Board applied liberal consideration to Petitioner’s claimed mental health condition, and the impact that this condition may have had upon his conduct and judgment. In this regard, the Board substantially concurred with the AO at enclosure (2) that Petitioner’s misconduct may be mitigated by his mental health condition. In addition to applying liberal consideration to Petitioner’s mental health condition in accordance with reference (c), the Board also considered all potentially mitigating factors in accordance with reference (d) to determine whether the interests of justice warrant relief in Petitioner’s case. In this regard, the Board considered, among other factors, the Petitioner’s combat service in Vietnam; that Petitioner developed a mental health condition while serving in the Navy; that Petitioner’s conduct and judgment may have been adversely affected by his mental health condition; that Petitioner has a multitude of medical conditions for which he cannot receive VA benefits due to the characterization of his service; that the President pardoned Petitioner for the SPCM from which he received a BCD; the evidence of Petitioner’s post-service volunteer work in the community as a successful Pop Warner football and Little League baseball coach and entrepreneurship as a bar owner; that Petitioner raised his children as a single father for more than 13 years to be productive members of society; Petitioner’s relative youth at the time of his misconduct; and the passage of time since Petitioner’s discharge. Considering the totality of the circumstances, the Board determined that the interests of justice warrant some relief in Petitioner’s case. Although the Board determined that some relief was warranted based both on the liberal consideration of Petitioner’s mental health condition under reference (c) and the totality of the circumstances under reference (d), it did not believe that upgrade to honorable was warranted. In this regard, the Board determined that the quantity and nature of Petitioner’s misconduct, as evidenced by multiple periods of UA and missed movements and two SPCM convictions, was so significant that an upgrade all the way to honorable was not warranted. Accordingly, the Board determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions). The Board also found that Petitioner’s narrative reason for separation, separation authority, and SPD code should be changed accordingly. The Board acknowledged that it previously attributed more UAs to Petitioner than it should have by mistakenly counting periods of confinement subsequent to his two SPCMs as UAs. However, the Board found no evidence to support Petitioner’s contention that he had only 54 lost days due to UA. In fact, Petitioner had multiple periods of UA, including one for 131 continuous days for which was convicted by a SPCM. Although he was pardoned for this conviction, that period remains an UA. Accordingly, the Board took no action regarding Petitioner’s assertion that he had only 54 days of UA. If Petitioner continues to assert that his DD Form 214 inaccurately reflects his lost time, Petitioner may seek redress administratively through the Navy Personnel Command. RECOMMENDATION: In view of the above, the Board recommends the following corrective action: That Petitioner be issued a new DD Form 214 reflecting that Petitioner was discharged on 25 May 1970 with a General (under honorable conditions) characterization of service; that the reason for his discharge was “Secretarial Authority”; that his SPD code was “JFF”; and that 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 VA be informed that Petitioner's application was received by the Board on 17 July 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 reference (b) 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. 1/8/2021 Executive Director