Docket No: 9885-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USN, XXX-XX 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 your application together with all material submitted in support thereof, relevant portions of your naval record, applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Secretary of Defense regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel 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), (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”). The Board also considered an advisory opinion (AO) from a qualified mental health provider. 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 24 August 1978. Petitioner’s pre-enlistment physical and medical history noted no psychological or neurological abnormalities, conditions, or symptoms. d. On 9 February 1979 Petitioner received non-judicial punishment (NJP) for violating a lawful general regulation for the possession of a controlled substance. On 9 July 1979 Petitioner received NJP for violating a lawful general regulation. On 13 July 1979 Petitioner received NJP for possession of a controlled substance. On 10 August 1979 Petitioner received NJP again for possession of a controlled substance. On 20 September 1979 Petitioner received NJP for the transfer of a controlled substance. e. On 21 September 1979, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities, and misconduct due to drug abuse. The Petitioner waived his rights to consult with counsel, submit a written statement to the separation authority for consideration, and to request an administrative board. The separation authority approved and directed Petitioner’s discharge for a pattern of misconduct with an other than honorable (OTH) characterization of service. Ultimately, on 27 November 1979 the Petitioner was discharged from the Marine Corps (retroactive to 21 September 1979) with an OTH characterization of service for a pattern of misconduct and assigned an “RE-4” reentry code. On 20 August 1986 the Naval Discharge Review Board (NDRB) determined that Petitioner’s discharge was proper and that no change was warranted. f. In short, the Petitioner contended he had underlying issues with undiagnosed Autism/Asperger Syndrome affecting his ability to perform his duties properly at the time. The Petitioner argued that the Board must view his mental health conditions as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. 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 4 January 2021. The Ph.D. initially observed that Petitioner’s civilian medical records indicated he underwent a comprehensive neuropsychological evaluation in 2014 and was diagnosed with Autism Spectrum Disorder, high level functioning/Asperger’s Syndrome, and Mixed Adjustment Disorder with anxiety and depression. The Ph.D. noted that Autism Spectrum disorders are neurological disorders which have onset during childhood and adolescence. The Ph.D. also noted that Asperger’s Syndrome is characterized by deficits in social interaction, as well as repetitive behavior, and that individuals with Autism Spectrum Disorders have difficulty interpreting social cues, which can present as having issues with authority, as well as difficulty with relating to peers. The Ph.D. further noted that interpersonal difficulty can contribute to low self-esteem as well as a low frustration tolerance/difficulty coping with stress, and that drug use is a maladaptive coping skill typically used to cope with mental health issues such as stress and low self-esteem. The Ph.D. observed that Petitioner utilized such maladaptive coping skill (drug use) prior to his enlistment and determined he likely utilized it again while in-service. The Ph.D. concluded by opining that there was sufficient evidence Petitioner exhibited behaviors associated with an Asperger’s Syndrome during his military service and that his misconduct may be mitigated by his mental health condition. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes 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. In keeping with the letter and spirit of the Clemency Memos, the Board believed that there was an injustice in ultimately separating the Petitioner for drug abuse with an OTH characterization of service. The Board felt that Petitioner’s diagnosed mental health conditions mitigate the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s Autism/Asperger’s Syndrome and related symptoms and conditions as possible causative factors in the misconduct contributing to his discharge and characterization 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. Especially in light of the Wilkie Memo, the Board concluded that after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, flawless service is not required for a general (under honorable conditions) discharge and 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 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 character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” and the separation code be changed to “JFF.” 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.