DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7008-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER XXX-XX- USN Ref: (a) 10 U.S.C. § 1552 (b) USD 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 w/attachment (2) BCNR Case File 1. Pursuant to reference (a), Petitioner, a former enlisted member of Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected by upgrading his characterization of service from under other than honorable (OTH) conditions to honorable, or in the alternative general (under honorable conditions), and change narrative reason for separation to secretarial authority or miscellaneous/general reasons. 2. The Board reviewed Petitioner’s allegations of error and injustice on 13 November 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 Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies, to include the 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). 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Petitioner enlisted in the Navy on 5 December 1989. On his pre-enlistment documents, the record reflects that Petitioner admitted to pre-service marijuana use, and the Board noted that his enlistment physical exam and medical history both noted no psychological/neurological conditions or symptoms. Additionally, his record reflects that he was granted a pre-service drug abuse waiver to enlist. Petitioner also signed the “USN Drug Abuse Statement of Understanding” on 2 October 1989 and he received further briefing on the Navy’s policies on drug abuse during initial recruit training. b. On 27 May 1992 Petitioner received non-judicial punishment (NJP) for the wrongful use of a controlled substance (cocaine). Following his NJP, on 28 May 1992 he was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse. Petitioner elected his rights to consult with counsel and to present his case to an administrative separation board (ADSEP Board). c. On 7 July 1992 an ADSEP Board convened. At the ADSEP Board Petitioner was represented by a Navy Judge Advocate. Following the presentation of evidence and witness testimony, the ADSEP Board members unanimously determined that he committed misconduct as charged. Subsequent to the unanimous misconduct finding, the ADSEP Board members recommended that Petitioner be separated from the naval service with an OTH characterization of service. On 21 July 1992 Petitioner’s commanding officer recommended that Petitioner receive general (under honorable conditions) based on his past performance record and letters/exhibits by Petitioner’s counsel. See enclosure (3). d. Petitioner’s separation physical and medical history both noted no psychological / neurological issues or symptoms. In the interim, Petitioner refused VA inpatient treatment prior to his discharge. Ultimately, on 16 October 1992 he was discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code. On 21 September 1993 the Naval Discharge Review Board determined that Petitioner’s OTH discharge was proper as issued and that no change was warranted. e. Petitioner’s contentions that he suffered from post-traumatic stress disorder (PTSD) and other related mental health conditions were fully and carefully considered by the Board. As part of the Board review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and available records and issued an AO, enclosure (4). The MD initially noted that Petitioner was diagnosed with PTSD post-service by the VA. The MD concluded by opining that the preponderance of available objective evidence supports the contention he suffered from early PTSD at the time of his military service, and that his in-service misconduct could be attributed to his mental health condition. BOARD CONCLUSION The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors and determined that Petitioner’s request did not warrant relief. In accordance with the published guidance, the Board gave liberal and special consideration to Petitioner’s record of service, and his contentions about any traumatic or stressful events he experienced and their possible adverse impact on his service. However, even under the liberal consideration standard, the Board concluded that there was no nexus between any PTSD and/or PTSD-related symptoms and Petitioner’s misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of his discharge. Notwithstanding liberally considering the facts of Petitioner’s case, the Board still concluded that his misconduct was not attributable to mental health-related conditions or symptoms. In this regard, the Board disagreed with the AO. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in Petitioner’s case in accordance with the Wilkie Memo. These included, but were not limited to, Petitioner’s contentions that he suffer from PTSD and persistent depressive disorder due to certain life-threatening experiences during his duty on the aircraft carrier, Petitioner’s desire to upgrade his discharge, contributions to the Navy, post-service accomplishments, and contention that he has been a productive member of society since his discharge. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that Petitioner’s misconduct, as evidenced by his NJP and ADSEP Board, outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that Petitioner’s request does not merit relief. In view of the above, the Board directs the following corrective action. BOARD RECOMMENDATION Deny relief. EXECUTIVE DIRECTOR’S CONCLUSION Notwithstanding the Board’s conclusion, I believe to the contrary, the Petitioner’s discharge was too hash given the totality of the circumstances. It is also important to note the Petitioner’s isolated drug use. In accordance with reference (b), Petitioner’s discharge warrants partial relief by upgrading Petitioner’s characterization of service to general (under honorable conditions). I base my recommendation on the following factors: I agree with the AO, reference (4), that the “Petitioner’s in-service records do contain direct evidence of sick call presentations for occupational stress and alcohol abuse, but no direct evidence of mental health conditions or psychological/behavioral changes that may have indicated PTSD. Petitioner did provide direct evidence of post-discharge diagnoses of PTSD, Major Depressive Disorder, and Cocaine Use Disorder (In Remission) which several mental health providers cited originated during his military service due to traumatic incidents he experienced. Petitioner stated that while on active duty, he experienced the following psychological symptoms and behavioral changes indicative of PTSD: depression, anxiety, sleep disturbances, intrusive memories, inconsistent performance marks post-Persian Gulf deployment, increased fear of death, and increased alcohol use as a maladaptive coping mechanism (and contributed to the incident in which he stated someone spiked his drink causing a positive cocaine drug screen). Petitioner’s description of these behaviors and psychological symptoms while he was on active duty are sufficiently detailed that they do lend credibility to Petitioner’s contention.” Thus, the AO’s medical opinion stated that the preponderance of available objective evidence does support the contention Petitioner suffered from early PTSD at the time of his military service, and that his in-service misconduct could be attributed to his mental health condition. Additionally, many of the factors that reference (b) weigh heavily in favor of granting the Petitioner partial relief. In addition to the Petitioner’s commanding officer’s recommendation, at the time of discharge, that Petitioner receive a general (under honorable conditions) based on his past performance record and letters/exhibits by Petitioner’s counsel. See enclosure (3). Lastly, I do not recommend that Petitioner’s narrative reason for separation should be changed to secretarial authority or miscellaneous/general reasons. Petitioner’s narrative reason for separation is supported by his misconduct and was issued without error or injustice. EXECUTIVE DIRECTOR RECOMMENDATION That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged with a general (under honorable conditions) characterization of service. 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. The foregoing action of the Board is submitted for your review and action. 1/12/2021 Assistant General Counsel (Manpower and Reserve Affairs) Reviewed Executive Director Recommendation (Partial Relief)