DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S COURTHOUSE ROAD SUITE 1001 ARLINGTON VA 22204-2490 Docket No: 9070-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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) Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 (Wilkie Memo) 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 Corrections of Naval Records (Board), requesting that her naval record be corrected to upgrade her characterization of service and make other conforming changes to her DD Form 214. 2. The Board, consisting of , , and , reviewed Petitioner's allegations of error and injustice on 15 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 Petitioner’s application together with all material submitted in support thereof, relevant portions of her naval record, an advisory opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies, to include the guidance from the Hagel Memo, Kurta Memo, and the Wilkie Memo (collectively, “Clemency Memos”). The AO 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 interest of justice to review the application on its merits. c. Petitioner initially enlisted in the Navy and began a period of active service on 26 June 1995. Petitioner’s pre-enlistment physical and medical history both noted no psychiatric or neurological conditions or symptoms. d. On Petitioner’s periodic performance evaluation (evaluation) for the period ending 15 December 1997, she received an overall trait average of 4.14, was ranked the number one Third Class Petty Officer in the squadron, and received Junior Sailor of the Year honors. On Petitioner’s evaluation for the period ending 15 June 1998, she received an overall trait average of 3.86 from the same reporting senior. e. On 13 August 1998 Petitioner received NJP for unauthorized absence (UA) that lasted thirty days. Following the NJP, Petitioner received a “Page 13” counseling warning. On 29 October 1998 r f. After the second NJP, the Petitioner was notified that she was being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. The Petitioner waived her rights to request an administrative separation board. In the interim, the Petitioner underwent a separation physical and the Medical Officer noted Petitioner was diagnosed with depression in 1998 and prescribed medication. Ultimately, following a delay for medical reasons, on 9 July 1999 the Petitioner was discharged from the Navy for misconduct with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reenlistment code. g. Based on her available service records, Petitioner’s overall conduct trait average assigned on her periodic performance evaluations during her enlistment was 4.0. Navy regulations in place at the time of her discharge required a minimum trait average of 3.0 in conduct (proper military behavior), for a fully honorable characterization of service. h. In short, Petitioner contended that she was suffering from service-connected post-traumatic stress disorder (PTSD) related to an on-base aggravated assault. At the time of her discharge, Petitioner also contended she was dealing with anxiety and depression. The Petitioner argued that the Board must view her mental health conditions as mitigating factors to the misconduct underlying her discharge and upgrade her characterization of service. i. As part of the review process, the BCNR Physician Advisor, who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued a favorable AO dated 14 December 2020. The Ph.D. noted that Petitioner’s in-service records do contain evidence of an in-service depressive disorder diagnosis and being prescribed medication. The Ph.D. determined that Petitioner’s UAs may have been a maladaptive coping skill (avoidance behavior) exhibited by someone who experienced a traumatic event and was having difficulty processing the event. The Ph.D. concluded by opining that there was sufficient evidence Petitioner exhibited behaviors associated with depression during her military service and that her misconduct may be mitigated by her mental health disorder. CONCLUSION: Upon review and liberal consideration of all the evidence of record and in light of the favorable AO, the Board concluded that Petitioner’s request warrants relief. Additionally, the Board reviewed her application under the guidance provided in references (b) through (e). Specifically, the Board considered whether her application was the type that was intended to be covered by these policies. In keeping with the letter and spirit of the Clemency Memos, the Board felt that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize her discharge. The Board also concluded that the Petitioner’s depressive disorder and related symptoms and conditions were possible causative factors in the misconduct contributing to her discharge and characterization, and were not outweighed by the severity of Petitioner’s 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. Lastly, in light of the Wilkie Memo, 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 flawless service is not required for an honorable discharge and is appropriate at this time. 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 “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the reentry code be changed to “RE-1.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new Honorable Discharge Certificate. 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 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. 1/27/2021 Executive Director