D E P A R T M E N T O F T H E NAVY
B O A R D F O R C O R R E C T I O N O F N A V A L R E C O R D S
2 N A V Y A N N E X
W A S H I N G T O N D C 2 0 3 7 0 - 5 1 0 0
CRS
Docket No: 7249-01
2 April 2002
From :
To :
Chairman, Board for Correction of Naval Records
Secretary of the Navy
Subj :
Ref:
(a) 10 U.S.C. 1552
(b) Woods v. Secretary of Defense, 496 F. Supp 192
(D.D.C., 1980)
Encl:
(1) DD Form 149 wlattachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, filed enclosure (1) with this
Board requesting, in effect, that his naval record be corrected
to show a more favorable type of discharge than the undesirable
discharge issued on 17 October 1960.
2. The Board, consisting of Messrs. Zsalman, Chapman, and Tew,
reviewed Petitioner's allegations of error and injustice on 6
March 2002 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. Although it appears that enclosure (1) was not filed in
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Navy on 8 June 1956.
d. During his active service, Petitioner's record reflects
that he received two nonjudicial punishments. The offenses
included failure to obey a lawful order on two occasions.
e. On 4 December 1957 Petitioner was honorably separated from
active duty and transferred to the Naval Reserve. While in the
Naval Reserve, he did not affiliate with a unit and performed no
duties.
f. On 31 May 1960 Petitioner was convicted by civil
authorities of robbery and sentenced to confinement for five
years.
g. Based on his conviction, Petitioner was processed for an
undesirable discharge from the Naval Reserve. The commanding
officer recommended that he be discharged for misconduct due to
his civil conviction with an undesirable discharge. After review
by the discharge authority, the commanding officer's
recommendation was approved. Petitioner received an undesirable
discharge on 17 October 1960.
h. In 1980, the United States District Court for the District
of Columbia decided the case set forth at reference (b). In that
case, the court ruled that the armed services could discharge a
reservist who was serving in a totally inactive status if the
individual was convicted by a civilian court. However, the court
also ruled that the member could not receive a discharge under
other than honorable conditions. In reaching the latter
conclusion, the court cited the rather tenuous bonds between such
service members and the armed services, and noted that
convictions of these members have little impact on the services.
The court concluded that a discharge under other than honorable
conditions can only be based on conduct directly affecting the
performance of military duties. A general discharge could be
issued only if the conduct had an impact on the overall
effectiveness of the military, including morale and efficiency.
In this regard, the duty of an inactive reservist to maintain
availability for call-up in an emergency was held to be an
inadequate nexus between civilian misconduct and the military.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action. The Board's finding in this regard is based upon
Petitioner's record of service and the holding of reference (b).
As he was in a totally inactive status at the time of his
civilian conviction, he had a very limited relationship with the
Naval Reserve. Therefore, his case falls within the holding of
reference (b). Since his service was characterized as honorable
on his release from active duty, and since his conduct apparently
had no impact on military efficiency, the Board concludes that
the characterization of his discharge should also be honorable.
However, since the Court agreed that discharge following a
civilian conviction was appropriate, the Board further concludes
that the reason for discharge should remain misconduct due to
conviction by civil authorities.
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 to show that he
was issued an honorable discharge by reason of misconduct on 17
October 1960 vice the discharge actually issued on that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
c. That, upon request, the Veterans Administration be informed
that Petitioner's application was received by the Board on 18
September 2001.
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. GOLDSM,~TH
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 (32 Code of Federal Regulations, 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 Director
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