D E P A R T M E N T O F T H E N A V Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY A N N U
WASHINGTON DC 20370-51 00
TJR
Docket No: 352-98
20 May 1999
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Ref: (a) 10 U.S.C.
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject 's naval record
1. Pursuant to the provisions of reference (a) , Petitioner, a
former member of the United States Marine Corps, filed enclosure
(1) with this Board requesting, in effect, that his naval record
be corrected by showing he was transferred to the Fleet Marine
Corps Reserve (FMCR) on 30 November 1995 as a staff sergeant/
( E - 6 ) , instead of being discharged on 9 March 1998.
2. The Board, consisting of Mr. Milner, Ms. Nofziger, and Mr.
Zsalman, reviewed Petitioner's allegations of error and injustice
on 18 May 1999 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 the enclosures, naval records, and
applicable statutes, regulations, and policies.
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. Enclosure (1) was filed in a timely manner.
c. Petitioner reenlisted in the Marine Corps on 11 November
1990 after 15 years of prior honorable service.
d. Subsequently, Petitioner submitted a written request for
transfer to the Fleet Marine Corps Reserve (E'MCR) to be effective
30 November 1995. However, his request was held in abeyance
pending disciplinary action.
e. On 7 October 1995 Petitioner was convicted by general
court-martial (GCM) of distribution of marijuana and conspiracy.
The sentence was approved by the convening authority on 10 May
996. He was sentenced to reduction in rank to private/(^-l),
confinement for six months, and a back conduct discharge. On 26
August 1996, Petitioner was placed on appellate leave pending
further appellate review.
f. Subsequently, a GCM supplemental order of 9 March 1998
noted that the findings and sentence of the GCM had been set
aside on 29 January 1998 by the Navy-Marine Corps Court of
Criminal Appeals, and that Petitioner would be issued a general
discharge.
g. Accordingly, on 9 March 1998, Petitioner was issued a
general discharge.
h. An advisory opinion (AO) from Headquarters, Marine Corps
(HQMC), recommends that Petitioner's record be corrected to show
that he was not discharged from the Marine Corps but transferred
to the FMCR.
The A0 notes in part, as follows:
(Member) requested a transfer to the Fleet Marine Corps
Reserve (FMCR) to be effective 30 November 1995 .... his
transfer was held in abeyance pending the completion of
disciplinary action. ... he was placed in an appellate leave
status while undergoing disciplinary action and ultimately a
GCM.... when his GCM was completed, he had been reduced in
rank to private and given a general discharge .... the GCM
findings and sentence were overturned on 29 January 1998. ...
charges were subsequently dismissed prior to his discharge
from the Marine Corps.
In consideration of the above facts, we recommend that
Petitioner's records be corrected to show that he was not
given a general discharge on 9 March 1998; and that he was
transferred to the E'MCR in the rank of staff sergeant, with no
lost time, effective 30 November 1995 as he had originally
requested. We further recommend that his retired pay account
be established and adjusted accordingly.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
The Board substantially concurs with the comments contained in
the advisory opinion and concludes that since the findings and
sentence of the GCM were set aside, the record should be
corrected to show Petitioner transferred to the E'MCR on the date
originally approved by HQMC.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by showing
that he was transferred to the E'MCR on 30 November 1995 in the
rank of SSGT/(E-6) vice issued the general discharge actually on
9 March 1998.
b. That Petitioner's naval record be further corrected to
show no lost time from 29 September 1995 to 21 February 1996.
c. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed, or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.
d. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential file
maintained for such purpose, with no cross reference being made a
part of 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.
ROBERT D. ZSALMAN
Recorder
ALAN E . GOLDSMIT~
Acting Recorder
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 (2 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.
Executive d
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