DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9461-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USN, 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 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Petitioner filed enclosure (1) with the Board for Corrections of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 22 January 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of his 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”). Although Petitioner was afforded an opportunity to submit a rebuttal to the AO, 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, it is in the interests of justice to review the application on its merits. c. The Petitioner enlisted in the Navy and began a period of active service on 13 February 1989. Petitioner’s pre-enlistment physical and medical history noted no psychological or neurological conditions, or symptoms. On 18 March 1992, Petitioner received non-judicial punishment (NJP) for the wrongful use of marijuana. d. Following the NJP, Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse. The Petitioner elected his rights to consult with counsel and to request an administrative board (Adsep Board). e. On 24 June 1992, 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 and recommended that Petitioner be separated from the naval service with an other than honorable (OTH) characterization of service. In the interim, at Petitioner’s separation physical he noted no psychological/neurological conditions or symptoms on his medical history. Ultimately, on 20 August 1992 Petitioner was discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code. f. In short, Petitioner contended that his discharge was inequitable given his overall trait averages from his periodic evaluations during his entire enlistment and that he only had one offense prior to his discharge. Petitioner also argued that if current Department of the Navy policies had been in place at the time of his active duty service, he would have been offered proper mental health screening and treatment and not discharged. Petitioner also pointed out that since his discharge he has raised a family, been an outstanding citizen with no criminal record, and had been steadily employed in the civilian sector at a Fortune 500 company. g. 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 an AO dated 15 December 2020. The Ph.D. initially observed that Petitioner’s in-service records contained evidence of psychological/behavioral changes indicating Petitioner was experiencing stress. However, the Ph.D. noted that Petitioner did not provide any evidence meeting the criteria for a mental health condition. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish Petitioner was diagnosed with or suffered from a mental health condition, nor was there evidence Petitioner’s in-service misconduct could be attributed to a mental health condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concluded 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 Hagel Memo (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. The Kurta Memo (reference (d)) was promulgated in 2017 to resolve ambiguities in light of the Hagel Memo, 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 Wilkie Memo (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 Wilkie Memo 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. Notwithstanding the AO, and in keeping with the letter and spirit of the Clemency Memos, the Board believed that there was an injustice in separating the Petitioner for drug abuse with an OTH characterization of service. The Board determined that justice clearly was not achieved in this case, and that the discharge characterization was unjust and wholly disproportionate to the offenses Petitioner committed. First, the Board noted Petitioner’s overall active duty trait average in conduct (proper military behavior) during his enlistment (3.15) exceeded the Navy’s required minimum trait average in that category (3.0) for even a fully honorable characterization of service. Second, the Board carefully considered all matters Petitioner submitted regarding his law-abiding post-service conduct and personal career accomplishments. Third, the Board also determined that, while not expressly condoning Petitioner’s offense, the relative severity of some misconduct can change over time and that marijuana use in the context of mitigating evidence may be viewed as less severe today than it was decades ago. 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. Especially in light of the Wilkie Memo, the Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that a general (under honorable conditions) discharge characterization is appropriate at this time. Notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s narrative reason for separation or reentry code. The Board concluded the Petitioner was assigned the correct narrative reason and reentry code based on the totality of his circumstances, and that such narrative reason and reentry code were proper and in compliance with all Navy directives and policy at the time of his discharge. 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),” and the separation code be changed to “GKK.” 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. 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. 1/28/2021 Executive Director