DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1827-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER AR , USN, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b)USD Memo, “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,” 25 August 2017 (c) USD Memo, “Guidance to Military Discharge ReviewBoards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) DD Form 214 (3) NAVPERS 1070/607, Court Memorandum, 26 Apr 73 (4) NAVPERS 1070/607, Court Memorandum, 18 Jun 73 (5) NAVPERS 1070/607, Court Memorandum, 22 Aug 73 (6) CO Memo Code LE 1910, subj: Notification of reasons for administrative processing and rights and privileges, 27 Aug 73 (7) Petitioner’s Memo, subj: “Agreement to Waive Administrative Discharge Board Accept an Administrative Discharge Under Honorable Conditions, 28 Aug 73 (8) CO Memo Code LE 1910, subj: [Petitioner]; recommendation for discharge by reason of unfitness of, 31 Aug 73 (9) CHNAVPERS Msg, subj: [Petitioner], dtg 141906 Sep 73 (10)NDRB Decisional Document, Docket No. ND85-00583, 5 Apr 85 (11)Department of Veterans Affairs Letter, dtd 26 Nov 18 (12) Department of Veterans Affairs, Decision Review Officer Decision, 27 Oct 19 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 characterization of service be upgraded to honorable. 2. The Board reviewed Petitioner’s allegations of error or injustice on 30 June 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) and (c). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation 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 waive the statute of limitations and review Petitioner’s application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty service on 16 August 1972. See enclosure (2) d. On 26 April 1973, Petitioner received nonjudicial punishment (NJP) for three specifications of failing to go at the time prescribed to his appointed place of duty in violation of Article 86, Uniform Code of Military Justice (UCMJ). See enclosure (3). e. On 15 June 1973, Petitioner received his second NJP for an unauthorized absence (UA) of approximately one day in violation of Article 86, UCMJ. See enclosure (4). f. On 22 August 1973, Petitioner received his third NJP for an UA of slightly more than one day in violation of Article 86, UCMJ. See enclosure (5). g. By memorandum dated 27 August 1973, Petitioner was notified that he was being processed for administrative discharge from the Navy because of frequent involvement of a discreditable nature with military authorities. See enclosure (6). h.On 28 August 1973, Petitioner waived his right to an administrative discharge board, conditioned upon a recommendation for a characterization of service no worse than general (under honorable conditions). See enclosure (7). i. By memorandum dated 31 August 1973, Petitioner’s commanding officer recommended to the separation authority that Petitioner be discharged from the Navy with a characterization of service no less favorable than general (under honorable conditions) in accordance with the condition of Petitioner’s administrative discharge board waiver in enclosure (7). See enclosure (8). j. By message dated 14 September 1973, the separation authority directed that Petitioner be administratively discharged from the Navy for unfitness with a general (under honorable conditions) characterization of service. See enclosure (9). k. On 18 September 1973, Petitioner was discharged from the Navy with a general (under honorable conditions) characterization of service. See enclosure (2). l. On 18 March 1985, the Naval Discharge Review Board (NDRB) unanimously found that Petitioner’s discharge was proper as issued and that no change was warranted. In his application to the NDRB, Petitioner asserted that his discharge was not fair because it did not reflect the nature of his offenses. See enclosure (10). m. On 26 November 2018, the Department of Veterans Affairs (VA) awarded Petitioner a 50 percent disability rating for mixed anxiety depressive disorder connected to his service, effective 29 September 2018. See enclosure (11). n. On 27 October 2019, the VA awarded Petitioner a 50 percent disability rating for service-connected migraine headaches, effective 29 September 2018. See enclosure (12). o. Petitioner contends that he had an undiagnosed mental health condition when he was in the Navy. He claims that he sought assistance from his command, but no one would help him. In fact, he claims that his commander kicked him out of his office when he tried to speak to him about his issues. Petitioner further contends that he was depressed, confused, and suffering from anxiety, and that it was under these circumstances that he had issues reporting to work. See enclosure (1). p. Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for the Board’s consideration. The AO noted that Petitioner was referred for a psychiatric consultation in November 1972 due to “…marked nervousness since auto accident 1 year ago…[sic].” Petitioner’s records also reflected that he reported to medical in June 1973, and stated that he was “agitated and nervous” about his job. In addition to this medical evidence, the AO commented that Petitioner’s service-connected disability rating from the VA for a mixed anxiety depressive disorder lends credibility to Petitioner’s contention. The AO ultimately found that there is sufficient evidence Petitioner exhibited behaviors associated with a mental health condition during his military service and that his misconduct may be mitigated by his mental health condition. See enclosure (13). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that Petitioner’s application warrants relief in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon an undiagnosed mental health condition, the Majority reviewed Petitioner’s application in accordance with theguidance of reference (b). Accordingly, the Majority applied liberal consideration to Petitioner’s contention that he suffered from an undiagnosed mental health condition while in the Navy, and special consideration to the VA’s determination that Petitioner’s mixed anxiety depressive disorder was service-connected, and the effect that such a condition may have had upon his misconduct. In this regard, the Majority substantially agreed with the findings of the AO that there is sufficient evidence that Petitioner suffered from a mental health condition while in the Navy, and that this condition may have mitigated the misconduct for which Petitioner was separated. While the Majority did not find this condition to excuse Petitioner’s misconduct, Petitioner’s anxiety-related depressive condition did provide context for his actions under the circumstances. In addition to applying liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his misconduct in accordance with reference (b), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Majority considered, among other factors, the mitigating effect of Petitioner’s undiagnosed mental health condition(s), as discussed above; Petitioner’s contention that he sought but was denied assistance from his command; that Petitioner has continued to suffer the effects of his service-connected mental health condition and migraine headaches for many years since his discharge from the Navy; the relatively minor nature of the misconduct for which Petitioner was discharged; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, the Majority found that these mitigating factors outweighed the relatively minor nature of the misconduct for which Petitioner was discharged. Accordingly, the Majority found that Petitioner’s characterization of service should be upgraded in the interests of justice. MAJORITY RECOMMENDATION: In view of the above, the Majority recommends that the following corrective action be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “honorable.” That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further corrective action be taken. MINORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Minority of the Board found insufficient evidence of any error or injustice warranting relief. The Minority also applied liberal consideration to Petitioner’s mental health condition(s) and the effect that they may have had upon Petitioner’s misconduct in accordance with reference (b), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Minority agreed that there was sufficient evidence that Petitioner had anxiety-and depression-related mental health condition(s) during his service, and that his mental health condition(s) may have mitigated Petitioner’s misconduct. Given the totality of the circumstances, however, the Minority did not believe that relief was warranted because Petitioner’s characterization of service was and remains appropriate under the circumstances. Even if his misconduct was mitigated by his mental health condition, the Minority found that its frequency still rendered the quality of Petitioner’s service below the standard expected for honorable service. Further, Petitioner’s characterization of service is not adverse, and does not deprive him of any benefits to which he otherwise would be entitled. Accordingly, the Minority found no injustice in Petitioner’s general (under honorable conditions) characterization of service. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrective action be taken on 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 7/21/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Upgrade to Honorable) 8/17/2021