Docket No: 7310-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER , USN, XXX-XX- 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: NR20190007310 of 4 November 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 the Board correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an honorable character of service in block 24 and “completion of required active service” in block 28. 2. Although Petitioner did not file his application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). A three-member panel of the Board, sitting in executive session, considered Petitioner’s application on 6 November 2020. The names and votes of the panel members will be furnished upon request. Petitioner’s allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. 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 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. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner enlisted in the Navy on 6 June 1994. On 21 February 1996, he was counseled for an alcohol related incident. On 21 March 1996, he received nonjudicial punishment (NJP) for drunk and disorderly conduct. On 1 July 1996, Petitioner received a retention warning which listed specific corrective action regarding future alcohol use and treatment. On 16 August 1996, he received a second NJP for failure to go to his appointed place of duty on two occasions, using disrespectful language towards a chief petty officer, dereliction of duty after failing to remain awake sounding fuel oil tanks, and being incapacitated for duty. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to a pattern of misconduct, commission of a serious offense, and alcohol abuse rehabilitation failure. 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 characterization of service due to misconduct. Petitioner was discharged on 11 October 1996. c. Petitioner contends he was suffering from PTSD and a Traumatic Brain Injury (TBI) while in service which mitigates the misconduct which led to his discharge and OTH characterization of service. In his statement, he details the incident which led to his TBI. While on watch, a two-ton battle hatch disengaged from its latch and fell on Petitioner’s head, pinning him to the deck. The hatch was too heavy for him to lift off, and as he screamed for help, blood was “spraying all over the place.” He was flown to base hospital, and a specialist was flown in from to repair Petitioner’s skull which had been chipped in two places and had a damaged artery. Petitioner contends he suffers from PTSD stemming from the accident. d. Petitioner further contends he suffered from alcoholism, a disorder which affected his ability to make willful decisions. He explains, in detail, how “the people placed in direct supervision of [him] not only contributed to the progression of [his]disorder but facilitated the avenue to make it spiral out of control.” e. Petitioner submitted five advocacy letters detailing his post-service contributions at work, demonstrated leadership abilities, and strong character qualities in both his personal and professional capacities. f. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 4 November 2020. The AO stated Petitioner’s in-service records document his severe head trauma and initial residual symptoms of TBI. Further, the AO stated Petitioner has provided evidence of post-discharge diagnoses of PTSD, along with in-service TBI, stemming from his in-service accident with the ship’s hatch. The AO concluded there is sufficient objective evidence Petitioner incurred PTSD and TBI during his military service and that his misconduct may be mitigated by his conditions of TBI and PTSD. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants partial relief. The Board reviewed the application under the guidance provided in references (b) through (e). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards in reaching fair and consistent results in “these difficult cases.” The memorandum describes the difficulty Veterans face on “upgrading their discharges based on claims of previously unrecognized” mental health conditions. The memorandum further explains that, since mental health conditions were not previously recognized as a diagnosis at the time of service for many Veterans, and diagnoses were often not made until after service was completed, Veterans were constrained in their arguments that mental health conditions should be considered in mitigation for misconduct committed or were unable to establish a nexus between a mental health condition and the misconduct underlying their discharge. The Board, applying liberal consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner suffered from TBI and PTSD during military service which mitigated the misconduct which led to his discharge with an OTH characterization of service. Specifically, the Board determined his TBI and PTSD diagnoses mitigated his second NJP because the misconduct was the type expected from one suffering from TBI symptoms. Noting the first NJP for drunk and disorderly occurred prior to the head injury, the Board concluded a general, under honorable conditions, characterization of service appropriately described Petitioner’s 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. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 20 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 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.