DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1118-21 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 of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (e) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 (NR202100011183) (2) BCNR, Advisory Opinion of 5 Jul 21 (3) Petitioner’s Response to Advisory Opinion of 8 Aug 21 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting an upgrade to her discharge to reflect an honorable characterization of service. Enclosures (2)-(3) and references (a) through (e) apply. 2. The Board consisting of Mr. Ms. and Ms. reviewed Petitioner's allegations of error and injustice on 20 August 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 Petitioner’s naval record, and 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), 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 considered the advisory opinion (AO) furnished by qualified mental health provider, along with Petitioner’s response to the AO. 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 the application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 26 January 1999. His enlistment contract committed him to four years of active duty service. Petitioner also agreed to extend his enlistment by an additional 12 months. d. On 8 November 2000, Petitioner was found guilty at summary court martial for violating Article 92 (failure to obey order or regulation) of the Uniform Code of Military Justice (UCMJ) and was sentenced to confinement for 10 days. Petitioner’s evaluation for the period of 16 July 2000 to 8 November 2000 stated that Petitioner received summary court martial on 8 November 2000 for violation of UCMJ Article 112. e. In communications with the Board, Petitioner acknowledges that he had a positive urinalysis for THC following a one-month post-deployment leave period, and states that he is not asserting that there was a mistake in the testing. Petitioner’s available service records do not document a positive urinalysis nor is his complete administrative discharge package reflected in his Official Military Personnel File. f. On 5 March 2003, Petitioner was discharged on the basis of misconduct due to drug abuse, and received an other than honorable (OTH) characterization of service and a reentry (RE) code of RE-4. g. In his application to the Board, Petitioner requested an upgrade from an OTH to a general or honorable characterization of service. Petitioner stated that he suffered from addiction/mental illness his whole life. He further contended that he has been sober since 5 June 2015. He asked that the Board take into consideration that he completed four years of enlistment and participated in a deployment. h. As part of the review process, a Physician Advisor reviewed Petitioner’s contention that suffered from a mental health condition, and as such, should receive a better characterization of service. The AO noted that Petitioner’s in-service records reveal positive performance evaluations and did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes which may have indicated a mental health condition. The AO concluded that based on the available evidence, the preponderance of available objective evidence failed to establish that Petitioner was diagnosed with or suffered from a mental health condition at the time of his military service, or that his in-service misconduct could be attributed to a mental health condition. Petitioner was provided a copy of the AO and was given the opportunity to submit a response. i. In his response to the AO, Petitioner stated that he is a recovering addict and that addiction is classified by the medical community as a progressive disease which can be arrested by complete abstinence. He asserted that at the time of his service, he was not armed with these facts about himself. He stated that he has completed countless hours of community service and outreach towards battling addiction. He completed four years of service, and served his country and the Navy with all of his heart and soul. He stated that he made a mistake and paid dearly for 20 plus years. j. The Physician Advisor reviewed Petitioner’s response and noted that Petitioner did not provide any new or material evidence in the response to support his petition. The Physical Advisor stated that the current AO stands as written. CONCLUSION The Board reviewed Petitioner’s request in accordance with references (b) through (e), and carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in his case in accordance with the Wilkie Memo. The Board noted that within the first two years of his enlistment, Petitioner was found guilty at summary court martial for failing to obey an order or regulation. Following his summary court martial, Petitioner’s evaluations capture his positive contributions to the Navy and his successful professional performance. Petitioner’s evaluations for the periods from December 2000 through June 2002 state he was highly reliable, a total team player, a valuable asset, and an energetic self-starter who accepts and excels at all tasks assigned. The Board also took into consideration Petitioner’s statement regarding a positive urinalysis and the March 2003 discharge on the basis of misconduct. The Board acknowledged that Petitioner completed more than 4 years of active duty, but that he did not complete the agreed upon 12-month extension. The Board considered the analysis and findings of the AO and substantially concurred with the conclusion that the available evidence fails to establish that Petitioner was diagnosed with or suffered from a mental health condition at the time of his military service, or that his in-service misconduct could be attributed to a mental health condition. However, taking into consideration the absence of the complete administrative separation package, Petitioner’s excellent work history between the time of his summary court martial and his administrative discharge, and Petitioner’s post-service achievements and contributions to his community, the Board found that Petitioner is entitled to an upgrade to his characterization of service as a matter of clemency. Upon review and consideration of all the evidence of record, and especially in light of reference (e), the Board found that Petitioner’s request warrants corrective action to include that Petitioner be granted an upgrade to his discharge characterization and that Petitioner’s Certificate of Release or Discharge from Active Duty (DD Form 214) should be changed to reflect a general characterization of service. The Board determined that an upgrade to an honorable discharge is not warranted given Petitioner’s summary court martial conviction in 2000. The Board concluded that an upgrade to a general characterization of service only is warranted, and that no further corrective action should be taken. In view of the above, the Board directs the following corrective action. RECOMMENDATION: That Petitioner’s naval record be corrected to show that on 5 March 2003, Petitioner was issued a general characterization of service. That Petitioner be issued a new DD Form 214. 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 Regulation, 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. 8/18/2021 Executive Director