DEPARTMENT OF THE NAVY

BOARD FOR

 

CORRECTlO+ OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

TJR
Docket No: 7049-00
9 June 2001

From:
To:

Subj:

Chairman, Board for Correction of Naval Records
Secretary of the Navy

CORD OF

Ref:

(a) 10 

U.S.C.'1552

Encl:

(1) Case summary
(2) Subject's naval record

Pursuant to the provisions of reference (a), Petitioner, a

1.
former enlisted member of the United States Navy, applied to this
that his naval record be corrected
Board requesting, in effect,
by upgrading his discharge,
separation, and by removing all references to a period of
unauthorized absence (UA).

changing the narrative reason for

'.

The Board, consisting of Messrs. Pfeiffer, Cooper and Ensley,

2.
reviewed Petitioner's allegations of error and injustice on 5
June 2001 and, pursuant to its regulations, determined that the
corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations, and policies.

Documentary material considered by

The Board, having reviewed all the facts of record pertaining

3.
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 it appears that Petitioner's application was not
it is in the interest of justice to
filed in a timely manner,
waive the statute of limitations and review the application on
its merits.

. Petitioner enlisted in the Navy on 13 September 1994.

He

the: served without disciplinary incident until 10 June 1997,
when he received nonjudicial punishment (NJP) for absence from
his appointed place of duty; a 12 day period of UA, from 15 to 26
March 1997; and two specifications of failure to obey a lawful
order, specifically, failure to properly check out on leave and
failure to shave.

In addition to the Court Memorandum  

(P.601-7R)

(P.601-6R) to document the 12-day period of UA.

documenting the NJP,
Absence 
Petitioner's Certificate of Release or Discharge from Active Duty
(DD Form 214) also reflects that this period of UA was charged as
time lost.

:ontains a Record of Unauthorized

the record 

d. On 15 July 1997 Petitioner received an enlisted performance

evaluation which indicated that he had failed a semi-annual
physical readiness test (PRT).
recent NJP.

The evaluation also mentioned the

. Petitioner was administratively separated with a general

The record does not contain a
but does contain conflicting

diszharge  on 31 July 1997.
complete separation package,
documentation regarding the reason for separation.
214 states that the reason for separation was misconduct due to
However, the record also
the commission of a serious offense.
contains a letter from the separation authority directing
discharge by reason of failure to meet physical standards with
Petitioner's social security number, but the name of another
Sailor.

The DD Form

f. In 2000 the Naval Discharge Review Board (NDRB) denied
Petitioner's request to recharacterize the general discharge.
NDRB's decisional document notes the reason for separation as
weight control failure due to failure to meet the prescribed
physical readiness standards.

4. With his application,

Petitioner has submitted a leave

request/authorization form (NAVCOMPT 3065) which shows that his
request for leave from 15 to 26 March 1997 was routed through the
chain of command and approved on 13 March 1997.

h. The Board received an advisory opinion (AO) from the Navy

Personnel Command,
requests for correction of his naval record be denied due to
insufficient documentation.

Pers-832C,  which recommends that Petitioner's

A0 notes, in part, as follows:

The 

. 

. 

. Petitioner's records have been reviewed relative to his

. 
request to remove lost time and change his characterization
of service to honorable.

The review reveals that Petitioner did, in fact, have an
approved leave chit as of 13 March 1997.
shows a check out time with a signature of a BUCR as the
OOD.
However, the
1070/607  specifically documents WCMJ Art. 92 for
NAVPERS 
failing to properly check out on leave.
1070/606 specifically records 12 days lost time for the
period in question.

Return from leave is undocumented.

I believe that the lost time is valid.

The leave chit

The NAVPERS

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In speculation,

The DD-214

It is unfortunate that the administrative separation package
the Petitioner could
is not in the record.
have been and probably was processed for misconduct due to
commission of a serious offense and PRT failure.
reflects an SPD code of GKQ indicating that an
administrative board recommended the general discharge
characterization for misconduct due to commission of a
serious offense.
the administration separation package to the contrary,
favorable action on this petition is not recommended.

Unless Petitioner can provide a copy of

i. The military courts have held that if an individual is

authorized leave but fails to follow local check-out procedures
he or she may be guilty of failure to obey a lawful order, but
not of UA.
United States v.  Hale, 20 USCMA 150, 42 CMR 342, 349 (1970);
United States v. Dukes, 30  MJ 793, 794 (NMCMR 1990).

United States v. Wheeler, 21 CMR 456, 457  (ABR 1956);

j. Applicable directives state that an individual discharged
by reason of misconduct due to commission of a serious offense is
normally discharged under other than honorable conditions, but
may receive a general discharge.
to failure to meet physical standards may receive either an
honorable or a general discharge.

Service members discharged due

k. An individual may be discharged for best interest of the

service (BIOTS), in accordance with the plenary authority of the
Secretary of the Navy, if discharge is appropriate but none of
the established reasons for separation fit the circumstances of
the case.
honorable or general discharge.

A servicemember separated for this reason receives an

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action.

 
the Board notes the document

Concerning the UA of 15 to 26 March 1997 shown on the P.
the NJP and the DD Form 214,
Petitioner has submitted which shows that he was authorized leave
It appears to the Board that he was deemed to
for this period.
be UA for this period because he neglected to properly check out
on leave.
failure does not constitute UA if the individual was authorized
leave.
referencing this period of UA should be removed from the record.

Therefore, the Board concludes that all documentation

However, as shown by the applicable case law, this

601-6R,

After reviewing the relevant evidence of record, the Board has no
idea whether Petitioner was separated by reason of misconduct or
The record contains
due to failure to meet physical standards.

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Accordingly, in the absence of a complete separation

documentation which could arguably support either reason for
separation.
package and because of the conflicting documentation in the
record, the Board concludes that the narrative reason for
separation should be changed to best interest of the service. In
this regard, given the corrective action to the NJP, the Board
has some doubts as to whether a separation for misconduct would
now be appropriate.

Concerning the characterization of service, the Board notes that
Petitioner received NJP and failed at least one PRT.
Accordingly, since a general discharge is authorized when an
individual is separated due to BIOTS, the Board concludes that
this characterization is appropriate despite the change in the
reason for separation, and declines to upgrade Petitioner's
discharge to fully honorable.

In view of the foregoing,
injustice warranting the following corrective action.

the Board finds the existence of an

RECOMMENDATION:

That Petitioner's naval record be corrected by removing all

refzrences to the period of UA from 15 to 26 March 1996,
including but not necessarily limited to the following:

1) the 

P-601-6R  dated 28 July 1997;

2) from the 

P.601-7R dated 10 June 1997,  

"Spec 2: UA fm

NMCB FOUR fm  

97MAR15 until  

97MAR26";

3) from the DD Form 214, block 29:

 

"TL: 

97MAR15 

- 

97MAR26";

4) from the NDRB decisional document, the entry on page 3,
"970315: Applicant on unauthorized absence from NMCB FOUR at Port
Hueneme, 
surrendered on board NMCB FOUR at Port Hueneme," and  
Spec 2: UA from NMCB Four from 970315 to 970326  

and the entries on page 4,  

"970326: Applicant

[12days/s]".

"970610:

CA;”

b. That the record be further corrected to show that on 31
July 1997 Petitioner received a general discharge by reason of
best interest of the service vice the discharge for misconduct
actually issued on that date.

C . That no further relief be granted.

d. 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.

-’

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e. That any material directed to be removed from Petitioner's
together with a copy of
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
and that the foregoing is a true and
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN
Recorder

Acting Recorder

5. The foregoing action of the Board is submitted for your review
and action.

Reviewed and approved:

E

JOSEPHG.lYNCH
Assistant General Counsel
And  Reserve 

(Manpower 

Affairs)

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