Docket No: 8448-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF , Ref: (a) 10 U.S.C. § 1552 (b) 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 (c) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 (d) Manual for Courts-Martial, 2008 Encl: (1) DD Form 149 with attachments (2) CORB Senior Medical Advisor AO, of 13 Sep 18 (3) SF 600, Health Record: Chronological Record of Medical Care, of 18 Mar 10 (4) SF 600, Health Record: Chronological Record of Medical Care, of 19 Mar 10 (5) NAVPERS 1070/613, Administrative Remarks, of 2 Apr 10 (6) DD Form 214 (7) Department of Veterans Affairs Rating Decision, 8 Nov 10 (8) Department of Veterans Affairs Rating Decision, 18 Mar 11 (9) NDRB Docket No. ND11-00937 (10) Department of Veterans Affairs Rating Decision, 16 Dec 11 (11) Department of Veterans Affairs Rating Decision, 7 Nov 15 (12) DD Form 149 (BCNR Docket No. 9465-17) (13) Petitioner’s Reply to CORB AO (14) BCNR Docket No. 9465-17 Decision Letter (15) Forensic Psychological Consultation (16) BCNR AO, 11 Dec 20 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 reconsideration of the Board’s previous decision in Docket No. 9465-17 denying his request that he be referred for a post-service medical evaluation board and medical retirement, or, in the alternative, that his characterization of service be upgraded to honorable; that the narrative reason for his separation be changed; and that his nonjudicial punishment (NJP) of 2 April 2010 be removed from his record. 2. The Board reviewed Petitioner’s allegations of error and injustice on 29 January 2021 and, pursuant to its regulations, determined the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) and (c). 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, it is in the interest of justice to review Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 5 January 2009. See enclosure (6). d. While Petitioner was deployed from May to October 2009, Petitioner’s father in developed health issues. While visiting his family while on leave upon return from this deployment, Petitioner learned that his father had almost died due to heart failure, and that he had stopped breathing and was almost brain dead. Petitioner came to believe that his parents needed him at home. See enclosure (1). e. Upon his return to duty, Petitioner requested a transfer to in order to provide care for his father. When he learned that he could not get such a transfer, he asked to be processed out of the Navy. In the meantime, Petitioner’s command sent him for temporary duty near his father in for approximately six weeks while purportedly processing his separation request. See enclosure (1). f. At the end of this temporary duty period, Petitioner was informed that he would not be processed out of the Navy and was required to report back to his command. Petitioner asserts that this put him into a depressive state, and that his command refused his request for counseling. See enclosure (1). g. On 16 March 2010, Petitioner had a meeting with his command regarding his request for a transfer to . This meeting became contentious after Petitioner was informed that he would not receive a transfer and that he would have to continue serving at his duty location in . Petitioner asserts that his supervisors became angry and began yelling at him during this meeting. The meeting culminated when Petitioner stabbed himself in his right thigh with a pair of scissors. See enclosure (1). h. Petitioner was immediately evaluated at the Naval Hospital , Immediate Care Clinic, for his self-inflicted stab wound. While at , he stated that his family brought on stress, and that he was overwhelmed and agitated at not having been granted a reassignment to care for his parents. A mental status examination indicated no psychotic symptoms, and Petitioner’s was diagnosed with Anxiety Disorder (not otherwise specified) and deemed a suicide risk. He was then referred to the Community Hospital () Psychiatric Unit. See enclosure (2). i. Petitioner was hospitalized at the Psychiatric Unit from 16-18 March 2010. After being discharged from on 18 March 2010, Petitioner started banging his head against the car window while being transported back to his command. He was immediately taken to a civilian hospital, and then referred to the Mental Health Clinic (). See enclosure (2). j. On 18 March 2010, Petitioner underwent an initial mental health evaluation upon his admission to the . According to the psychologist’s note from this evaluation, Petitioner stated that he “stabbed himself with scissors yesterday [sic] in attempt to be released from USN and return to parents’ home in .” This note also records that Petitioner “[i]nsists he is responsible for parent’s illness, [and] believes if he were present they would not be sick. Very focused on insisting he must go to because his presence will ‘cure’ his parents [sic] illness.” The mental health examination found Petitioner “evidences of thought disorder, [and is] delusional about his presence being able to heal father’s illness.” Petitioner was diagnosed with “Psychosis-delusional” and “Personality Disorder, self-mutilative manipulation effort.” See enclosure (3). k. On 19 March 2010, Petitioner was diagnosed by a mental health provider at with Adjustment Disorder with anxiety and depressed mood. No psychosis was noted during this evaluation. Petitioner reportedly continued to voice his need to get out of the military in order to assist his parents with their health issues during this evaluation. He further explained his self-destructive behavior after his discharge from (i.e., banging his head against the car window), stating that he felt trapped and that he became frustrated thinking he would never get to help his parents. See enclosure (4). l. On 2 April 2010, Petitioner received NJP for malingering in violation of Article 115, Uniform Code of Military Justice (UCMJ), based upon his self-mutilating behavior on 16 March 2010. See enclosure (5). m. On 1 May 2010, Petitioner was discharged from the Navy with a general (under honorable conditions) characterization of service for misconduct due to commission of a serious offense.1 See enclosure (6). 1 Petitioner’s service records do not include the documentation regarding his administrative separation process. This information is taken from Petitioner’s DD Form 214. The presumption of regularity applies. n. On 15 September 2010, a Department of Veterans Affairs (VA) examiner diagnosed Petitioner with “adjustment disorder with mixed mood features (also claimed as depression).” Service connection for this condition was denied since it was determined that the condition neither occurred nor was caused by Petitioner’s service. Petitioner was not diagnosed with Major Depressive Disorder (MDD) during this initial VA examination. This diagnosis and service-connection determination was confirmed on 8 November 2010. See enclosure (7). o. Petitioner was diagnosed with MDD in December 2010. On 18 March 2011, the VA determined that Petitioner’s MDD condition was not service related. Despite finding no service connection, the VA granted Petitioner service connection for treatment purposes only in accordance with 38 U.S.C. § 1702 since he was a Gulf War-era veteran and the condition was diagnosed within two years of his discharge. See enclosure (8). p. On 28 February 2011, Petitioner applied to the Naval Discharge Review Board (NDRB) for an upgrade to his characterization of service. He claimed that he was separated for mental health reasons and should have received an honorable discharge, and requested the upgrade so that he could qualify for VA benefits. On 17 May 2012, the NDRB unanimously voted to deny his request. See enclosure (9). q. On 1 December 2011, a VA mental health provider found that Petitioner’s MDD condition “is at least as likely as not related to his depressive episode that occurred during active duty in [March 2010].” Based upon this evaluation, on 16 December 2011 the VA awarded Petitioner a 30 percent service-connected disability rating for MDD. See enclosure (10). r. On 22 September 2015, Petitioner’s service-connected VA disability rating for MDD was increased from 30 percent to 70 percent based upon private medical evidence showing an increase in his disability. See enclosure (11). s. On 7 November 2017, Petitioner first applied to the Board for the same relief sought in the present reconsideration request. See enclosure (12). As part of its review process for this application, the Board received an advisory opinion (AO) from the Senior Medical Advisor to the Navy Counsel of Review Boards (CORB). The CORB AO found that the preponderance of the evidence does not show that the Petitioner suffered from a psychotic disorder when he stabbed himself, contrary to the single diagnosis in his record suggesting psychosis on 18 March 2010. In reaching this conclusion, the CORB AO commented that Petitioner’s stated belief that his physical presence could cure his father’s illness was not diagnosed as delusional, but rather was considered a “non-delusional, culturally related belief held by the applicant regarding illness.” To support this analysis, the CORB AO noted that Petitioner had said, “they don’t understand, this is my culture” on 19 March 2010 with regard to his pressing need to support his parents, and that VA records make a passing reference to the Petitioner’s heritage, which is a culture that emphasizes family values. The AO concluded that the preponderance of evidence does not support Petitioner’s request for disability retirement, but that Petitioner’s mental health condition, complicated by his cultural beliefs, does mitigate his misconduct. See enclosure (13). t. In his response to the CORB AO, Petitioner’s attorney again reiterated his assertion that Petitioner suffered from a major mental health disorder that mandated a medical evaluation board, and that the Navy pushed him out with a general discharge under the guise of an adjustment disorder diagnosis rather than taking care of and properly evaluating him. He suggested that the CORB AO was inaccurate in claiming that Petitioner’s “Adjustment Disorder with Mixed Mood Features” was the correct diagnosis, and that the VA’s current diagnosis of MDD was more accurate. Finally, he found the CORB AO reference to Petitioner’s heritage to be discriminatory, despite the fact that it was generally favorable in finding that Petitioner’s mental health condition mitigated his misconduct. See enclosure (2). u. On 29 November 2018, Petitioner’s previous application to the Board was denied. The Board agreed with the CORB AO conclusion that Petitioner’s mental health condition mitigated his misconduct, but determined that Petitioner’s general (under honorable conditions) characterization of service was appropriate under the circumstances given the severity of his misconduct. See enclosure (14). v. On 27 May 2019, Petitioner received a forensic psychological consultation. This consultation report found that the circumstances of Petitioner’s self-mutilating act made it more likely the result of a panic attack triggered by his anxiety over his command’s decision not to grant his transfer request than a malingering act. To support this conclusion, the consultation report cited that American Psychiatric Association (APA) definition of “malingering” and noted that Petitioner’s self-mutilating act lacked the awareness of a reward or purpose required by this definition. See enclosure (15). w. Petitioner offered the above referenced forensic psychological consultation report as material not previously considered by the Board to support this reconsideration request. He contends that he did not malinger, but rather likely suffered from a panic attack as suggested in the report. He repeats his assertion that it was an injustice for the Navy to separate him for misconduct when he clearly suffered from mental health issues as documented in subsequent VA medical documents. Petitioner also repeated his assertion that he was discriminated against by the Board’s previous reliance upon the CORB AO which made reference to his cultural beliefs. See enclosure (1). x. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided another AO for the Board’s consideration. This AO noted that Petitioner’s in-service records contain direct evidence of a diagnosed Adjustment Disorder made three days after his self-injurious act. The AO also found that Petitioner provided a credible statement detailing the increasing depression and anxiety he experienced regarding his parent’s circumstances that prompted his request for reassignment closer to their home, as well as the impulsive and unpremeditated self-injurious act that arose from his anxiety and distress when denied this request. Given the evidence of the Petitioner reporting anxiety and depressive symptoms prior to his self-injurious act, the spontaneous and unplanned nature of the act, the diagnosis of Adjustment Disorder proximate to the act, and the post-discharge diagnosis of MDD with anxiety, the AO found the characterization of Petitioner’s self-injurious act as malingering less plausible than as one arising impulsively during a moment of heightened anxiety and panic. Accordingly, the AO found sufficient indirect evidence that Petitioner’s self-injurious act was less likely due to malingering, but instead the result of a mental health condition experienced during his military service and that his misconduct may be better explained and mitigated by a mental health condition than an intentional act of malingering. See enclosure (16). y. According to reference (d), the elements of malingering in violation of Article 115, UCMJ, are: (1) that the accused was assigned to or was aware of prospective assignment to, or availability for, the performance of work, duty, or service; (2) that the accused intentionally inflicted injury upon himself; and (3) that the accused’s purpose or intent in doing so was to avoid the work, duty, or service. MAJORITY CONCLUSION: After careful and deliberate consideration of all of the evidence of record, the Majority of the Board found insufficient evidence to support Petitioner’s request for a medical evaluation board and medical retirement, or to remove Petitioner’s NJP for malingering. It did, however, find that Petitioner’s characterization of service should be upgraded and his narrative reason for separation changed in the interests of justice. First, the Majority found insufficient evidence to support Petitioner’s request for a post-discharge medical evaluation board and a medical retirement. At the time of his discharge from the Navy, Petitioner was diagnosed with an adjustment disorder. This condition did not require referral to a medical evaluation board, and there is no evidence that it prevented Petitioner from performing his military duties. In fact, Petitioner was cleared for full duty on both 19 March 2010 upon his release from the MHC, and again during a follow-up evaluation on 22 March 2010. But for Petitioner’s misconduct, the Majority found no evidence that he would have been unable to continue performing his military duties. In this regard, the Majority rejected Petitioner’s contention that his MDD diagnosis from the VA represents a more accurate diagnosis than the Adjustment Disorder diagnosis made at the time. Rather, the Majority found the MDD diagnosis only to be more recent, and noted that the VA had also originally diagnosed Petitioner with only an adjustment disorder months after his discharge from the Navy. As there is no evidence that Petitioner was suffering from a disqualifying mental health condition or that he was unable to perform his military duties at the time of his discharge, the Majority found insufficient evidence to support his request for a medical evaluation board and/or a medical retirement. Next, the Majority found insufficient evidence to support Petitioner’s request to remove his NJP for malingering. Petitioner provided evidence suggesting that Petitioner’s conduct did not meet the diagnostic criteria for malingering, and this analysis was supported by the AO. However, Petitioner was never “diagnosed” with malingering. Rather, he was charged with the offense under Article 115, UCMJ. The Majority found that the evidence clearly established the elements of this offense listed in paragraph 3y above. When Petitioner stabbed himself with the scissors, he knew that his request for a transfer was being denied and that he would have to continue performing his assigned duties away from his parents. Additionally, Petitioner specifically informed his mental health provider on 18 March 2010 that he stabbed himself with the scissors in an attempt to get released from the Navy so that he could return to his parents. The APA definition of malingering cited by Petitioner’s forensic psychological consultation report is irrelevant to the determination of whether he committed this serious offense under the UCMJ, and his 18 March 2010 statement to a mental health provider provided sufficient evidence of his specific intent. Accordingly, the Majority found no error or injustice in either Petitioner’s NJP or administrative separation for this serious offense. Petitioner’s alternative request for an upgrade to his characterization of service was considered in accordance with the guidance of reference (b). Accordingly, the Board applied liberal consideration to Petitioner’s claimed mental health condition and the effect that it may have had upon his conduct. In this regard, the Majority concurred with both of the AOs provided in this case which found that Petitioner’s misconduct may have been mitigated by his mental health condition. In additional to applying liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his conduct in accordance with reference (b), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Majority considered, among other factors, that Petitioner’s misconduct was mitigated by his mental health condition and the anxiety and distress that he felt over his father’s medical condition; Petitioner’s otherwise meritorious naval service, as evidenced by the commendation that he received for his deployment to the western Pacific Ocean and Arabian Sea from May to October 2009 and his overall in-service trait average; that Petitioner’s in-service mental health condition has apparently evolved into a more debilitating MDD condition, as evidenced by his current 70 percent VA disability rating; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority determined that Petitioner’s characterization of service should be upgraded in the interests of justice. For the same reason, the Majority determined that Petitioner’s narrative reason for separation should be changed to minimize the potential for future negative implications. Finally, the Majority considered and rejected Petitioner’s contention that he was discriminated against by the reference to his cultural background in the CORB AO. An objective reading of this AO makes clear that the cultural reference was made to highlight family dynamics that may not otherwise have been obvious to explain Petitioner’s thought process. His cultural background was obviously not referenced in a discriminatory manner to deny Petitioner his requested relief. The Majority also noted that the CORB AO was generally favorable to Petitioner, despite his claimed discrimination, as it advised the Board that Petitioner’s mental health condition may have mitigated his misconduct. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken upon Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that his characterization of service was “Honorable”; that the narrative reason for his separation was “Secretarial Authority”; that his separation code was “JFF”; and that his separation authority was “MILPERSMAN 1910-164.” That Petitioner be issued an Honorable Discharge certificate. That no further corrective action be taken. That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: The Minority of the Board concurred with the Majority conclusions above on all matters except for the upgrade of Petitioner’s characterization of service. The Minority agrees with the Majority and the AOs that Petitioner’s mental health condition mitigated his misconduct and that some relief was warranted. However, based upon the severity of Petitioner’s misconduct and that the evidence clearly established the intent required to support the charge of malingering in violation of Article 115, UCMJ, the Minority found that the mitigating circumstances did not so outweigh Petitioner’s misconduct as to justify an upgrade of his characterization of service. Accordingly, the Minority determined that Petitioner’s general (under honorable conditions) characterization of service remains appropriate given the totality of the circumstances. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective action be taken upon Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that his characterization of service was “General (under honorable conditions)”; that the narrative reason for his separation was “Secretarial Authority”; that his separation code was “JFF”; and that his separation authority was “MILPERSMAN 1910-164.” That no further corrective action be taken. 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-titled matter. 5. The foregoing action of the Board is submitted for your review and action.