DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
ELP
Docket No. 5889-98
19 April 1999
Dear
&$;:;:
This is in reference to your
naval record pursuant to the
States Code, Section 1552.
application for correction of your
provisions of Title 10, United
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 14 April 1999.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies
Your allegations of error and
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
for three years as a
reenlistment, you had completed nearly 10 years of prior active
service.
At the time of your
PNl (E-6).
on 30 April 1982
The record reflects that you served without incident until
10 April 1984 when you were convicted by general court-martial of
stealing United States government funds in the amount of about
$1500 and making a false travel claim in the amount of $1,150.
You were sentenced to confinement at hard labor for 30 days,
and a bad conduct discharge.
reduction in rate to PNSR (E-l),
The convening authority approved the sentence on 30 August 1984
and you were placed on appellate leave on 14 November 1984. At
the time you were placed on appellate leave, you signed a
statement to the effect that if the sentence to a bad conduct
discharge was set aside you would be discharged with type of
discharge warranted by your service record.
Subsequently, the
d
Navy-Marine Corps Court of Military Review
findings and the sentence of the court-martial.
(NMCCMR) affirmed the
On 28 February 1985, the Acting Secretary of the Navy (SECNAV)
remitted that part of the sentence that extended to a bad conduct
discharge and ordered that the unremitted balance of the
sentence, which was erroneously ordered executed by the convening
The Court of
authority, be duly executed on 28 February 1985.
Military Appeals denied your petition for review on 6 September
1985.
You were honorably discharged by reason of expiration of
enlistment on 6 January 1986.
In its review of your application, the Board conducted a careful
search of your service record for any mitigating factor which
might warrant voiding your discharge and restoring you to active
However, no justification for such action could be found.
duty.
The Board noted your contentions that the
,original charges were
modified on three different occasions, uncharged misconduct
allowed into evidence at trial was prejudicial, a motion by the
NMCCMR defense attorney was prejudicial,
desire to correct your errors were ignored.
there was an error in the sentence as determined by the Acting
SECNAV, then the error was in the severity of the sentence.
You assert that if
and your willingness and
In other words, contention that mistakes of law were
The Board is prohibited by law from reviewing the findings of a
court-martial and must restrict its review of determining if the
sentence of the court-martial should be reduced as a matter of
clemency.
made cannot be considered by the Board because that is the
purpose of appellate review.
your specific contentions were addressed by the NMCCMR in its
With
response that affirmed the findings and the sentence.
regard to the Acting
authority erroneously ordered the sentence executed prior to
NMCCMR's review.
It further appears that a result of this error
the Acting SECNAV believed the sentence was too severe and acted
The Board
accordingly by remitting the bad conduct discharge.
notes that despite the convening authority's erroneous action,
SECNAV did not set aside the conviction, but allowed the
remaining unremitted portion of the sentence to be executed, even
though it had already been carried out.
SECNAV's action, it appears the convening
However, the Board noted that the
Your conviction and discharge were
Trial by general court-martial was warranted by the gravity of
the offenses charged.
effected in accordance with applicable law and regulations.
Although you had more than 16 years of service when you were
discharged, this factor does not provide a valid basis for
voiding the discharge and granting you considerable constructive
service to transfer to the Fleet Reserve.
Further, regulations
prohibit the retention of individuals serving in pay grade E-l
after the expiration of their enlistment.
Accordingly, your
application has been denied.
of the panel will be furnished upon request.
The names and votes of the members
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
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