Docket No: 8220-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , 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 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), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his characterization of service and make other conforming changes to his DD Form 214. Enclosures (1) and (2) apply. 2. The Board, consisting of , reviewed Petitioner's petition containing certain allegations of error and injustice on 11 December 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken. 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). Additionally, The Board also considered the advisory opinion (AO) furnished by 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, the Board determined that it was in the interests of justice to review the application on its merits. c. Regarding Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered his case based on the evidence of record. d. Petitioner enlisted in the Navy and began a period of active service on 26 August 2003. Petitioner’s pre-enlistment physical and medical history both noted no psychological or neurological conditions or symptoms. e. On 9 August 2004 the Petitioner was convicted at a Summary Court-Martial (SCM) for an unauthorized absence (UA) lasting 132 days and for four specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ). As punishment Petitioner was reduced in rank to the lowest enlisted paygrade (E-1), received forfeitures of pay and confinement for thirty days. f. On 29 March and 11 April 2005, Petitioner commenced two separate UA periods each lasting two days, respectively. On 6 January 2006, Petitioner received non-judicial punishment (NJP) for two specifications of UA. 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. However, Petitioner subsequently received NJP on 25 May 2006 for failing to obey an order or regulation by violating liberty risk orders. g. Following the NJP, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense. Based on the information contained within Petitioner’s record, the Petitioner presumably waived his right in writing to request an administrative separation board. Ultimately, on 7 July 2006 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. h. On 14 June 2019, the Naval Discharge Review Board (NDRB) determined that Petitioner’s discharge was proper as issued and no change was warranted. The NDRB concluded that Petitioner’s record reflected willful, repeated, and deliberate misconduct and that the evidence did not show PTSD was a sufficient mitigating factor. i. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) following his deployment to Indonesia in support of tsunami relief efforts. 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. j. As part of the review process, the BCNR Physician Advisor, who is licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO dated 2 December 2020. The Ph.D. noted that Petitioner’s in-service records did not contain direct evidence of a PTSD diagnosis or other psychological/behavioral changes indicating a mental health condition or early PTSD symptoms. However, the Ph.D. observed that the Petitioner was diagnosed post-service with PTSD. The Ph.D. concluded by opining that there was sufficient evidence the Petitioner had a PTSD diagnosis related to his military service and that some, but not all, of Petitioner’s misconduct may be mitigated by his mental health condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial 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 some of 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 most veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board observed that Petitioner’s long-term UA occurred long before his PTSD triggering event and was in no way attributable to his mental health condition. Moreover, contrary to Petitioner’s contentions, a four-month UA is a very serious UCMJ offense and not minor in nature that independently could have merited an OTH or punitive discharge. The Board also noted that there was no convincing evidence in the record indicating Petitioner’s due process rights were violated during his administrative separation processing. The Board concluded that Petitioner’s contentions alone were neither persuasive, nor sufficient to overcome the presumption of regularity. Additionally, the Board determined that Sailors should receive no higher discharge characterization than is due. 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 considering Petitioner’s post-service conduct, 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 28 August 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.