Docket No: 8483-19 
Ref: Signature Date 
 
From:  Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:    REVIEW NAVAL RECORD OF          
 
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,” 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,” 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,” 25 August 2017 
           (e) 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 
 
Encl:  (1) DD Form 149 with attachments 
    (2) Advisory Opinion dtd 1 Dec 20 
          (3) DD Form 214 
          (4) NAVPERS 1070/607, Court Memorandum, dtd 25 Nov 91 
          (5) NAVPERS 1070/607, Court Memorandum, dtd 3 Sep 92 
          (6) NAVPERS 1070/607, Court Memorandum, dtd 19 Aug 93           
          (7)  Memo, subj: Notice of Administrative  
    Board Proposed Action, dtd 23 Aug 93 
          (8) NAVPERS 1070/808, Enlisted Performance Record 
          (9) NDRB Docket No. ND01-00934, dtd 7 Feb 02 
          (10) Mental Health Provider ltr, dtd 8 Jan 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 that his characterization of service be upgraded to honorable or general (under honorable conditions).  
 
2.  The Board reviewed Petitioner's allegations of error and injustice on 8 January 2021, and pursuant to its regulations determined that the corrective action indicated below should be taken.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, to include references (b) – (e).   
 
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 waive the statute of limitations and review Petitioner’s application on its merits.   
 
     c.  Petitioner enlisted in the Navy and began a period of active duty on 7 September 1990.  See enclosure (3).   
 
     d.  On 25 November 1991, Petitioner received non-judicial punishment (NJP) for willfully disobeying a lawful order in violation of Article 91, Uniform Code of Military Justice (UCMJ).  See enclosure (4).   
 
     e.  On 3 September 1992, Petitioner received a second NJP for a period of unauthorized absence (UA) in violation of Article 86, UCMJ, and for two specifications of failure to obey a lawful order in violation of Article 92, UCMJ.  See enclosure (5).   
 
     f.  On 19 August 1993, Petitioner received a third NJP for a period of UA and failure to go to his appointed place of duty in violation of Article 86, UCMJ.  See enclosure (6).   
 
     g.  By memorandum dated 23 August 1993, Petitioner was notified that he was being considered for administrative discharge for misconduct due to a pattern of misconduct and commission of a serious offense, as evidence by his three NJPs.  This memorandum informed Petitioner that his service could be characterized as other than honorable (OTH).  Petitioner did not elect to request an administrative separation board, but did object to the separation.  See enclosure (7).   
 
     h.  On 23 September 1993, Petitioner was discharged from the Navy under OTH conditions for misconduct based on a pattern of misconduct.  See enclosure (3).  At the time of his discharge, Petitioner’s final average performance rating was 3.1.  See enclosure (8). 
 
     i.  On 30 January 2002, the Naval Discharge Review Board (NDRB) denied Petitioner’s request to upgrade his characterization of service to honorable so that he could pursue a commission through the Air Force Reserve Officer’s Training Corps.  See enclosure (9). 
 
     j.  Petitioner contends that his discharge represents an injustice because he was an above-average performer and decorated combat veteran, and that his post-traumatic stress disorder (PTSD) symptoms were undiagnosed at the time.  He also asserts an injustice in that he was pressured not to consult with counsel at the time of his misconduct, and that he was separated with the same characterization of service as others who committed more serious misconduct.  See enclosure (1).  Petitioner also provided a letter from a mental health provider to support his claim of PTSD.  This letter asserted that Petitioner met the criteria for PTSD at the time of his military service, and continues to suffer from its symptoms.  See enclosure (10).   
 
     k.  Petitioner’s application and records were reviewed by a qualified mental health advisor, who provided an advisory opinion (AO) for the Board’s consideration.  The AO noted that Petitioner’s service records contain no evidence of a mental health condition or of behavioral changes or psychological symptoms indicative of PTSD or other diagnosable mental health conditions.  It also noted that Petitioner’s post-service PTSD diagnosis (enclosure (10)) was made 27 years after his discharge based solely upon Petitioner’s self-reported history, and therefore has less probative value with regard to his in-service mental health than the evaluations conducted at the time which reflected no mental health conditions.  Based upon this review, the AO found insufficient evidence to conclude that Petitioner incurred PTSD as a result of his military service that may have mitigated his misconduct.  See enclosure (2).   
 
CONCLUSION: 
 
Upon its careful and conscientious review of all of the evidence of record, the Board found that Petitioner’s application warrants relief. 
 
Based upon his assertion of PTSD, Petitioner’s application was reviewed in accordance with the guidance provided by references (b) – (d).  Accordingly, the Board applied liberal consideration to Petitioner’s assertion of PTSD and the effect that it may have had upon Petitioner’s misconduct.  Contrary to the findings of the AO, the Board found sufficient evidence to conclude that Petitioner suffered from PTSD while in the Navy, and that this condition mitigated his misconduct.  In this regard, the Board found enclosure (10) to be persuasive under the liberal consideration standard. 
 
In addition to applying liberal consideration in accordance with references (b) – (d), the Board also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice under reference (e).  In this regard, the Board considered, among other factors, that Petitioner’s PTSD condition mitigated his misconduct; that Petitioner continues to suffer PTSD symptoms; Petitioner’s numerous awards and decorations for expeditionary operations; Petitioner’s final conduct and performance averages; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge.  Based upon this review, the Board determined that relief is warranted in the interests of justice.  Specifically, the Board determined that an upgrade of Petitioner’s characterization of service to general (under honorable conditions) is warranted under the totality of the circumstances.   
 
Although the Board determined that relief was warranted, it specifically did not believe that an upgrade to honorable was warranted under the circumstances.  In this regard, the Board determined that the nature and quantity of Petitioner’s misconduct, as reflected in his three NJP, that an upgrade to fully honorable is not warranted.  The Board also noted that a general (under honorable discharge) characterization of service would make Petitioner eligible for the Department of Veterans Affairs (VA) benefits that he seeks, thus negative any injustice.  For the same reason, the Board also determined that Petitioner’s narrative reason for separation should not be changed, as it accurately reflects the reason for Petitioner’s discharge and does not represent an injustice under the circumstances.          
RECOMMENDATION: 
 
In view of the above, the Board recommends the following corrective action on Petitioner’s naval record: 
 
That Petitioner be issued a new DD Form 214 reflecting that he was discharged on 23 September 1993 with a general (under honorable conditions) characterization of service.   
 
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.  
 
              1/29/2021