DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9848-19 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), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his Certificate of Release or Discharge from Active Duty (DD Form 214) following his discharge for a personality disorder. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 12 March 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 Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta 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. Petitioner was afforded an opportunity to submit a rebuttal and Petitioner submitted AO rebuttal materials for the Board’s consideration. 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 8 July 1999. Petitioner’s pre-enlistment physical and medical history noted no psychiatric or neurological abnormalities, conditions, or symptoms. d. On 11 March 2000 Petitioner received non-judicial punishment (NJP) for unauthorized absence due to not attending mandatory damage control training. e. The administrative separation (Adsep) documents are not in the Petitioner’s electronic service record. However, based on the information contained on his DD Form 214, the Board determined that Petitioner’s command initiated Adsep proceedings by reason of convenience of the government for a condition, not a disability on the basis of a diagnosed personality disorder of such severity as to render the Petitioner incapable of serving adequately in the naval service. Based on Petitioner’s number of years of service, Petitioner was not entitled to an Adsep board, and the lowest eligible discharge characterization he could have received was General (Under Honorable Conditions) (GEN). Ultimately, on 22 June 2001 he was discharged from the Navy with a GEN discharge and assigned an RE-4 reentry code. The Board specifically noted on his DD Form 214 that the narrative reason for separation was “Personality Disorder,” and his separation code was “JFX,” which corresponded to and described an Adsep separation case involving a personality disorder. f. In short, Petitioner contended that dealing with PTSD he suffered following a shipboard incident when his ship collided with another vessel during an underway refueling. The Petitioner argued that this diagnosis might have mitigated the misconduct that led to his GEN characterization of service. The Petitioner provided evidence that the Department of Veterans Affairs (VA) determined he has service-connected PTSD and granted him a 70% disability rating in 2013. g. As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued two AOs dated 26 January 2021 and 2 March 2021, respectively. The MD initially determined that the evidence failed to establish Petitioner was diagnosed with PTSD, suffered from PTSD at the time of his military service, or that his in-service misconduct or performance could be attributed to PTSD or other mental health conditions. However, the Petitioner submitted the VA documents to effectively rebut the first AO. Based on the new VA evidence presented, the MD opined that the evidence supported Petitioner’s contention he suffered a traumatic event while in military service resulting in the development of PTSD, and that this mental health condition mitigated his in-service behavior and performance contributing to his GEN discharge. 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 the Hagel, Kurta, and Wilkie Memos. Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. Initially, despite the fact that the Adsep records were not in the service record, the Board relied on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed he was properly processed for separation and discharged from the Navy. In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board determined that it would be an injustice to label one’s discharge as being for a diagnosed character and behavior disorder. Describing Petitioner’s service in this manner attaches a considerable negative and unnecessary stigma, and fundamental fairness and medical privacy concerns dictate a change. Accordingly, the Board concluded that Petitioner’s discharge should not be labeled as being for a mental health-related condition and that certain remedial administrative changes are warranted to the DD Form 214. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization and believed that Sailors should receive no higher discharge characterization than is due. The Board determined that an honorable discharge was appropriate only if the Sailor’s service was otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Board concluded by opining that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standards for mental health conditions, and that even though flawless service is not required for an honorable discharge, in this case only a GEN discharge characterization was appropriate. The Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. The Petitioner’s overall active duty trait average was 1.83 in conduct. Navy regulations in place at the time of his discharge required a minimum trait average of 2.0 in conduct/military behavior for a fully honorable characterization of service. The Board determined that Petitioner’s conduct/military behavior marks during his active duty career were a direct result of his performance and conduct deficiencies. Lastly, the Board also noted that the ship collision happened several months after his March 2000 NJP, thus the NJP misconduct was in no way mitigated by any mental health conditions. Even 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 the Petitioner only merits a GEN characterization of service. The Board also did not find a material error or injustice with the Petitioner’s reentry code. The Board concluded the Petitioner was assigned the correct reentry code based on the totality of his circumstances, and that such reentry code was 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 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. 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.