DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAW ANNEX

WASHINGTON DC 203704100

ELP
Docket No. 415-98
10 May 1999

Dear-

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

Your allegations of error and

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 21 April 1999.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
In addition, the Board considered the advisory
opinions furnished by the Enlisted Performance  
Naval Personnel (Pers-832C) and the Deputy Assistant Judge
Advocate General (JAG) for Administrative Law, copies of which
are enclosed.

Branch,,Bureau  of

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice

The Board found that you reenlisted in the Navy on 21 April 1975
for six years as an MSC (E-7).
you had completed more than 14 years of active service.

At the time of your reenlistment,

‘

The record further reflects that you served without incident
until 16 August 1976 when you were convicted by general  
martial of conspiracy to fraudulently enlist recruits, five

specifications of false enlistment of recruits, four

specifications of executing a false document, and four
specifications of receiving money from individuals to effect
their enlistment in the Navy.
at hard labor for six months,
six months, and reduction in rate to MS2 (E-5).

You were sentenced to confinement
forfeitures of $350 per month for

court-

On 13 January 1997 the commanding officer (CO) advised the Bureau
of Naval Personnel that you had been convicted by general  
court-
martial but no punitive discharge had been adjudged.
noted that regulations provided for the discharge of individuals
convicted by civil authorities,
discharge processing due to a court-martial conviction.
appeared that neither the Bureau of Naval Personnel Manual
(BUPERSMAN) nor other regulations allowed for discharge under
such conditions, the CO requested advice or instructions prior to
your release from confinement.
On 25 January 1997, the Chief of
Naval Personnel (CNP) directed separation with the type of
discharge warranted by the service record by reason of
convenience of the government under BUPERSMAN Article 3850220. A
separation code of
"JFG" and an RE-4 reenlistment code were also
directed.

but were silent regarding

The CO

Since it

On 4 February 1977 you submitted a letter to the CNP, via your
CO, stating that you had been informally advised of the
separation action by reason of convenience of the government.
You asserted that you had received no formal notification of
discharge nor was it your intention to be discharged with more
than 16 years of active service.
officially notified and advised of your rights.
your letter for such action deemed appropriate by CNP and noted
that discharge had already been directed.
The CO stated that
your defense counsel had inquired into the status of discharge
processing and was informed that you were being processed for
convenience of the government.
It was noted that although you
were not entitled to legal counsel under the foregoing BUPERSMAN
article, it was anticipated that your defense counsel would
assist you in this matter.
18 February 1977.

You were honorably discharged on

You requested that you be

The CO forwarded

BUPERSMAN Article 3850220, then in effect, authorized the
separation of enlisted personnel prior to the expiration of their
enlistment for any one of 26 separate reasons.
These reasons
included substandard personal behavior which reflected discredit
upon the service or adversely affected the member's performance
of duty; and as a result of an action taken with respect to the
decision or recommendation of the Naval Clemency and Parole
Board, a Navy Review Board, a Navy Enlisted Performance
Evaluation Board, or similar boards.
BUPERS Instruction 1900.25 promulgated instructions for
preparation of the Certificate of Release or Discharge from
Active Duty (DD Form 214) and listed the authorized reasons for
discharge, separation and reenlistment codes shown on that form.
The separation code
"as a
result of action taken with respect to decisions and
recommendations of a Navy Clemency Board, Navy Review Board, Navy

"JFG" means that you were discharged  

Enlisted Performance Evaluation Board or similar board, or at the
discretion of the Chief of Naval Personnel." Neither the reason
for discharge nor the reenlistment code is entered on blocks
 
or 10 of your DD Form 214 because the foregoing instruction
stated that no such entries would be made.

9c

In its review of your application,
your requests to reinstate you to MSC,
and grant sufficient constructive service for transfer to the
In this regard, the Board noted the biographical
Fleet Reserve.
sketch detailing your life prior to service and Navy career, your
viewpoint of the circumstances leading up to your convictions and
discharge, and the copy of the congressional hearings into
recruiting malpractice by the Army two years after you were
discharged.

the Board carefully considered
set aside your discharge,

The Board also particularly noted counsel's contentions to the

effect that no regulations provided for the discharge of an

The

and you should have been permitted

your due process rights were

individual for misconduct due to a conviction by court-martial;
no legal basis existed for discharge by reason of convenience of
the government since none of the criteria set forth in BUPERSMAN
Article 3850220 applied to you;
violated since you were not afforded adequate notice of the
discharge processing or an opportunity to consult with counsel
and respond to the proposed discharge; you were coerced into
signing your discharge papers;
to serve the remainder of your enlistment since the general
court-martial did not sentence you to a punitive discharge.
Board also considered counsel's claim that after you were
discharged, your last command was dismantled and the CO was
relieved because of improper recruiting practices, yet you were
the only service member to be charged with any improprieties.
Counsel also argues that since the convening authority chose not
to impose a punitive discharge,
convenience of the government was simply a guise for additional
punitive measures.
honorable discharge,
discharge since you were not recommended for reenlistment and
received an RE-4 reenlistment code.
counsel's rebuttal to the JAG advisory opinion essentially
reiterated the previous contentions.

it had the effect of a dishonorable

The Board also noted that

your administrative discharge for

Counsel asserts that although you received an

Despite counsel's argument and contentions to the contrary, the
Board substantially concurred with the findings and conclusions
set forth in the JAG advisory opinion.
concluded that CNP clearly had the authority to discharge you for
convenience of the government.
The Board also believed that you
were actually discharged due to
"substandard personal behavior
which reflected discredit upon the naval service."
of which you were convicted by general court-martial included the
improper enlistment of recruits,
executing false documents, and

In this regard, the Board

The offenses

The fact that regulations at the time did not

These actions certainly constituted personal behavior of   a

taking money from individuals in return to enlisting them in the
Navy.
nature that brought great discredit upon the Navy,   your command,
and yourself.
authorize your discharge by reason of misconduct did not preclude
CNP from directing discharge for another reason authorized by
regulations, specifically, convenience of the government.
Board also concluded that a clerical error occurred in
identifying the specific reason for discharge but that the error
was not legally significant.
The Board further agreed with JAG
that since all procedural requirements set forth in the BUPERSMAN
were followed in processing you for separation, there was no
violation of due process of law in your case.

The

Counsel's contention that you should not have been administra-
tively discharged since the convening authority chose not to
impose a punitive discharge is without merit.
convening authority could not impose a punitive discharge since
it was not part of the court-martial sentence.
The convening
authority can only reduce, suspend, disapprove, or approve the
sentence.
Further, the fact that a punitive discharge was not
imposed did not in any way preclude discharge through the
administrative separation process.
administrative separation in your case was proper and appropriate
given the serious offenses of which you were convicted by general
court-martial.

The Board concluded that

First, the

The Board believed that you were fortunate to have been honorably
discharged since under current regulations you could be
discharged under other than honorable conditions by reason of
misconduct due to commission of a serious offense.
With an
honorable characterization of service,
are eligible for all veterans benefits.
from a general court-martial would have resulted in considerable
stigma, and may have resulted in ineligibility for some veterans'
benefits.
Your contentions that your former command was subsequently
dismantled and the CO relieved for improper recruiting practices
is neither supported by the evidence of record nor by any
evidence submitted in support of your application.
satisfactorily explain the relevance of the congressional
hearings enclosed with your application on your court-martial
conviction or the circumstances which led to your discharge.

A punitive discharge

no stigma attaches and you

You fail to

Based on all of the foregoing,
the Board concluded that there is
no basis for granting any of your requests for corrective action.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

DEPARTMENT OF THE NAVY
BUREAU OF NAVAL PERSONNEL
WASHINGTON. D.C. 20370-5000

IN REPLY REFER TO

5420
Pers-832C
2 Jun 98

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

OF NAVAL RECORDS (BCNR)

BUPERS/BCNR COORDINATOR, PERS-OOXCB

$“

Via:

Subj:

Encl:. (1) BCNR File 00415-98

(2) Petitioner's Microfiche Record

The petition and naval records of subject petitioner
1.
have been reviewed relative to his request for removal of
derogatory material,
benefits.

void discharge and authorize retirement

Since a court-martial conviction was not

After a major revision to the

Subsequently his chain of command and the Chief

The review indicates that petitioner was convicted by a

2.
General Court-Martial for several recruiting related
offenses.
of Naval Personnel determined that his services were no
longer desired.
covered under misconduct in the BUPERS Manual, the only
other alternative method for an administrative discharge was
to use Convenience of the Government at the discretion of
the Chief of Naval Personnel.
this method of discharge evolved into
MILPERSMAN in 1982,
Best Interest of the Service which, to this date, does not
authorize an administrative board for members being
processed.
convictions were included under misconduct due to commission
of a serious offense and became binding on administrative
Although it may
boards to make findings of misconduct.
appear to the petitioner that he was not afforded due
process, at that time the GCM conviction based on a full
trial was sufficient justification to allow BUPERS authority
to issue discharge without notice or further procedure.
Therefore, favorable action on this petition is not
recommended.

Also during this period,

courts-martial

Techni,cal  Advisor
to the Head, Enlisted
Performance Branch

DEPARTMENT OF THE NAVY

OFFICE  OF THE JUDGE ADVOCATE GENERAL

WASHINGTON NAVY YARD

1322 PATTERSON AVENUE SE SUITE 3000

WASHINGTON DC 20374.5066

IN REPLY 

REFER  

TO

580 0
Ser 
30 Nov 98

13/1MA12126.98

From:
To:

Subj:

Deputy Assistant Judge Advocate
Executive Director,

Board for Correction of Naval Records

General (Administrative Law)

NTS AND RECOMMENDATION

IN THE CASE OF

Ref:

(a) Your ltr ELP Docket No. 415-98 of 13 Aug 98

Encl:

(1) Legal analysis

1.

* 

Purpose.
.

This responds to your refe
hether the 1977 discharge of
requirem
comported with the
egulations.

'our

ue process and

2.

Short Answer.

Yes.

Because he received an honorable

gef free from stigma or derogatory information, ex-MS2
was not entitled to notice, hearing, or the opportunity to
Additionally, the
consult with counsel prior to his discharge.
administrative separation action complied with all then-applicable
regulations.

Discussion.

3.
issue.

Enclosure (1) contains a detailed analysis of this

GC,

action officer on this issue is LCDR

ched at (703) 604-8212.

.

LEGAL ANALYSIS

requirement;

Whether the 1977 discharge of
[hereinafter "Petitioner"] c
of due process and applicable

regulations?

2 .

Short Answer.

Yes.

Because he received an honorable

free from stigma or derogatory information, ex-MS2

was not-entitled to notice, hearing, or the opportunity to
Additionally, the
consult with counsel prior to his discharge.
administrative separation action complied with all then-applicable
regulations.

Background.

Petitioner, a chief petty officer, was convicted

3.
by general court-martial on 16 August 1976 of several charges
His sentence included reduction
related to recruiting misconduct.
and confinement for six months, but
to pay grade E-5, forfeitures,
While serving his sentence
did not include a punitive discharge.
of confinement, he was processed for administrative separation. At
that time, applicable regulations did not provide for separation
due to misconduct for a member who was convicted by a
martial.
separation processing from the Chief of Naval Personnel.
January 1977, the Chief of Naval  
be separated by reason of convenience of the government, with
as the separation code. Additionally, the Chief of Naval Personnel
specified that Petitioner receive a type warranted by service
record discharge and be assigned an  
Petitioner was honorably discharged from the Navy on 18 February
1977, having completed over 16 years of service.

Thus, Petitioner's command requested guidance regarding
On 25

Personne3,  directed that Petitioner
"JFG"

"RE-4" reenlistment code.

court-

 

 

Discussion.

4.
was illegal because he was not afforded due process of law and
because there was no proper regulatory-basis for such discharge.

Petitioner claims that his discharge from the Navy

a.

Due process.

Petitioner claims that because he was not
pryposed action and given an opportunity to
The

afforded notice of the  
respond and seek counsel,
Constitution mandates that  
life, liberty, or property, without due process of  
only deprivations of "life, liberty, or property" trigger the
Constitutional protections of due process.
In this regard,
Petitioner was not deprived of any interest that would trigger due
process protections.
right  per se  to remain in service until the expiration" of a
current enlistment,

he was denied due process of law.
"[n]o person shall . . . be deprived of
Thus,

no member has a property interest in continued

Because a service member "does not have a

law."2

' We note that Petitioner,
received notice that he was to be separated from 
such action.
was available to assist him.
Be considered in the disposition of this case.

the'rNavy and stated that he objected to
We also note that his detailed defense counsel was aware  of such action and

Nonetheless, based on applicable law, such facts need not

in his letter of 4 February 1977, acknowledged that he

U.S. 

CONST.  amend. V.

ENCLOSURE 

)(/ 

Because Petitioner received

large.114

service.3

"can be summarily rejected."

While some courts have found a "reputation"
military 
liberty interest in certain types of military discharges, such a
finding requires that the discharge carry a "stigma or derogatory
connotation to the public at  
no stigma attached to his discharge.
an honorable discharge,
Petitioner claims that because an "RE-4" code, preventing his
future enlistment, was assigned to him and because he was
discharged before the expiration of  
discharge carried additional  
stigma.
and
stated that  
discharge before the expiration of an enlistment term" the court
could not "conclude that early discharges must be preceded by
notice and a  
reenlistment by stating that "standing alone,
member] cannot reenlist is not a stigma."'
Petitioner's discharge was honorable and did not contain any
stigmatizing or derogatory information,
liberty or property interest and was not entitled to the
protections of Constitutional due process.

be&ause "Congress has explicitly provided for a

The court also addressed a bar to

tfs term of service, "the

Keef, the Court of Claims

hearing-If7

he was not deprived of a

Accordingly, because

In 

This claim is without merit

the mere fact that [a

b.

Regulatory provisions.

It is axiomatic that an agency is

Petitioner was

Subparagraph 

bound by its regulations' and that administrative separations may
not violate applicable regulations to the prejudice of a member.
In this case, applicable regulations were followed.
processed for separation by reason of convenience of the
Government, under section 3850220 of the Bureau of Naval Personnel
lk of this section provides the
Manual (BUPERSMAN).
specific basis applicable to Petitioner's separation.
subparagraph states that a member may be separated based on
"[slubstandard  personal behavior which reflects discredit upon the
service or adversely affects the member's performance of duty."
Because Petitioner had been found guilty beyond a reasonable doubt
and convicted by general court-martial of several violations of the
Uniform Code of Military Justice,
support for this basis of separation.
While
not arbitrary and capricious, as Petitioner alleges.
subparagraph lo was identified as the reason for separation on
Petitioner's DD214, this clerical error is  
The reason for this is that the
is paramount" and that
are 

"any subsequent incorrect designations . . .
Petitioner'ls  case, the   25 January 1977

notrlegally  significant.
"basis for discharge as stated . . .

-Accordingly, separation was

there was adequate factual

inconsequential."l'

This

In 

(1967).

Dirt v. United States, 180 Ct. Cl. 910 
Id.

: 
' Petitioner's Brief at p. 9.
of being Dishonorable" and constituted
prief at p. 3-4.
_ Keef v. United States, 185 Ct. Cl. 454 (1968).
’ 
“, 
roSee, e.g., Service v. Dulles, 354 U.S. 363 (1957).

Id.
Id.
Keef, 165 ct. Cl. 454.

:

Petitioner also claims that his discharge "had the effect
Petitioners

"additional punitive punishment."

2

message from the Chief of Naval Personnel identified the correct
general reference for separation.
not invalidate the initial decision.
Petitioner complied with all applicable regulatory provisions.
Because Petitioner received an honorable discharge, he had no
regulatory right to notice and hearing or to consult with counsel.
The Navy did not violate any then-applicable regulations when it
discharged Petitioner.

Subsequent clerical error does
Finally., action to separate

C.

Regulatory consistency.

Another issue identified is

1332:14 of 29 December 1976.

It is not applicable to Petitioner's case.

sep'aration  provisions of the BUPERSMAN were consistent
Paragraph B14 of

whether the  
with DOD Directive  
enclosure  (2) to DOD Directive 1332.14 states that the Secretary of
a Military Department may direct the separation of an enlisted
member when "in the best interest of the service."
is an expression of the authority of a Service Secretary to direct
Because
separation.
Petitioner was discharged by reason of substandard personal
behavior, he was not discharged on the basis of "best interest of
The applicable portion of DOD Directive 1332.14 is
the service."
paragraph B13 of enclosure  
"such 
Military Department concerned."
behavior" was properly prescribed in a Navy regulation as a basis
for administrative separation,
conflict between DOD and Navy regulations.
Petitioner was consistent with the DOD Directive.