Dockert No. 7395-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of MilitaryNaval 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 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 Correction of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and to change his narrative reason for discharge. Enclosures (1) and (2) apply. 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 your application on 20 November 2020. The names and votes of the panel members will be furnished upon request. Your 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 your application together with all material submitted in support thereof, relevant portions of your 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 and began a period of active service on 7 June 1983. Petitioner’s pre-enlistment physical and medical history both noted no psychological or neurological conditions or symptoms. c. On 27 April 1984 the Petitioner received non-judicial punishment (NJP) for disobeying a lawful order from a superior commissioned officer. Petitioner also received a “Page 13” counseling sheet documenting the NJP and warning him that any further deficiencies in his performance and/or conduct may result in disciplinary action and in processing for administrative separation. d. Between 18 June 1984 and 20 February 1986 Petitioner received NJP five (5) additional times for a total of fifteen (15) separate offenses including, but not limited to, unauthorized absence, insubordinate conduct, and drunk and disorderly conduct. Following his sixth NJP, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse. The Petitioner consulted with counsel and elected to request an administrative separation board (Adsep Board). e. On 3 March 1986 an Adsep Board convened in Petitioner’s case. 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 Petitioner committed the misconduct as charged. Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that Petitioner be separated from the naval service with an other than honorable (OTH) characterization of service. In the interim, Petitioner commenced a period of UA on 3 March 1986 and never returned to his duty station prior to his separation. Ultimately, on 23 May 1986 Petitioner was discharged from the Navy for misconduct with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code. f. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) resulting from a fuel fire on board the as well as other matters beyond his control that impaired his capability to serve. The Petitioner argued that the quality of his service generally met the standard of acceptable conduct and performance for military personnel. The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. g. As part of the review process, the Board’s Physician Advisor, who is licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO dated 6 November 2020. The Ph.D. observed that the Petitioner was diagnosed post-service with PTSD and a substance abuse disorder. The Ph.D. concluded by opining that there was evidence the Petitioner had a PTSD diagnosis which may be related to his military service and that much, but not all, of Petitioner’s misconduct is attributable to his mental health condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants 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. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “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 because 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. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD-related symptoms and condition as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s pattern of misconduct. 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, and that a general (under honorable conditions) (GEN) discharge and no higher under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of virtually all veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner only merits a GEN characterization of service and no higher, and that the reentry code should remain “RE-4.” 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 “General (Under Honorable Conditions),” 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 General (Under Honorable Conditions) Discharge Certificate. 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 or about 29 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.