DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

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NAVY 

ANNEX

WASHINGTON DC 20370-5100

TJR:jdh
Docket No: 9221-02
9 September 2003

A three-member panel of the Board, sitting in executive session
considered your application and a majority recommended that your
naval record be corrected as set forth in the attached report
dated 28 August 2003.
In accordance with current regulations,
the designated representative of the Assistant Secretary of the
Navy for Manpower and Reserve Affairs conducted an independent
review of the Board's proceedings and approved the minority
recommendation that your application be denied.
You are advised that reconsideration of your case will be granted
only upon the presentation of new and material evidence not
previously considered by the Board and then, only upon the
recommendation of the Board
Secretary.
It is regretted that a more favorable reply cannot be made.

and approval by the Assistant

, Sincerely,

Executive Di

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DEPARTMENT OF THE NAVY

BOARD FOR CORRECT

2 

NAVY 

I ON OF NAVAL RECORDS

ANNEX

W ASH I NGTON DC 20370

-5100
TJR
Docket No: 9221-02
28 August 2003

From: Chairman, Board for Correction of Naval Records
To:
Subj: REVIEW OF NAVAL OF RECORD

Secretary of the Navy

(a)

Ref:
Encl: (1) Case summary

10 U.S.C. 1552

(2) Subject's naval record

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

'The Board, consisting of Messrs.
reviewed Petitioner's all

1.
former enlisted member of the Marine Corps, filed an application
with this Board requesting that the characterization of his
discharge be changed.
2.
and
injustice on 26 August 2003 and, pursuant to its regulations, a
\ majority determined that the corrective action indicated below
should be taken on the available evidence of record.
material considered by the Board consisted of the enclosures,
naval records, and applicable statutes, regulations, and
policies.
3.
to Petitioner's allegations of error and injustice finds as
follows:

The Board, having reviewed all the facts of record pertaining

Documentary

d

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 a

timely manner, it is in the interest of justice to waive the
statue of limitation and review the application on its merits.

C .

Petitioner enlisted in the Marine  

at age 17.
and attained test scores which placed him in Mental Group IV.

Co r ps ' on 22 March 1968
At that time, he had completed 10 years of education

d.

Petitioner then served for about a year without incident,

but on 28 March 1969 he submitted a written statement in which he
admitted to receiving two pills of secobarbital sodium from

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t

another Marine.
use the pills, and that he had never been under the influence of
any dangerous drugs.

However, Petitioner also said that he did not

e.

In August 1969 administrative separation action was
initiated by reason of unfitness due to drug possession as
evidenced by his 28 March 1969 statement.
administrative discharge board recommended retention.
Subsequently, Petitioner was retained in a probationary status,
with a proviso that he refrain from any further drug related
activities.

However, an

f.

During the period from 20 November 1969 to 24 April 1970,
Petitioner received nonjudicial punishment (NJP) on two occasions
His
and he was also convicted by summary court-martial (SCM).
offenses were three periods of unauthorized absence (UA)
totalling 11 days, absence from his appointed place of duty, and
failure to obey a lawful order.

g . Petitioner reported for duty in Vietnam on 26 July 1970.
Subsequently, he was awarded the Vietnam Service Medal with one
On 1 October 1970 he was
star and the Vietnam Campaign Medal.
promoted to lance corporal 

(LCPL/(E-3)).

h.

On 19 January 1971, while serving in Vietnam, Petitioner
submitted a written request for an undesirable discharge for the
good of the service to avoid trial by court-martial for a six day
period of UA, and disobeying a lawful order by refusing to get
Prior to submitting this request,
his gear and go to the field.
he conferred with a qualified military lawyer, was advised of his
rights, and warned of the probable adverse consequences of
accepting such a discharge.

i.

j.

Petitioner's request for discharge was granted on 4
On 24

February 1971 and he left Vietnam two weeks later.
February 1971 Petitioner received an undesirable discharge for
As a result of this action, he was
the good of the service.
spared the stigma of a court-martial conviction and the potential
penalties of a punitive discharge and confinement at hard labor.
‘a faithful

In his application, Petitioner says he was 

Marine, a hard charger even in combat," and further contends that
However, he has
his discharge was tainted by racial prejudice.
provided the Board with no evidence to support the contention of
Petitioner has
bias, and the record contains no such evidence.
submitted evidence that through his church, he has been involved
in counseling, drug testing, and teaching.
Investigation has reported that Petitioner has no criminal record
with that agency.

The Federal Bureau of

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MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, a
majority of the Board, consisting of Messrs. Neuschafer and
McPartlin, concludes that Petitioner's request warrants favorable
action.
The majority's finding is based on Petitioner's youth and
immaturity, limited education, low test scores, promotion to
LCPL, service in Vietnam, good post service conduct, and the
In this regard, the majority
minor nature of his misconduct.
does not condone Petitioner's misconduct, but notes that he was
retained after a relatively minor incident of drug possession.
Subsequent, infractions which resulted in a conviction by SCM and
NJP's included short periods of UA and failure to obey  a
two 
lawful order, all of which were relatively minor.
One of the
offenses for which he requested discharge was another brief
The other offense, in which he disobeyed an order
period of UA.
to go to the field in a combat zone, was more serious, but the
majority weighed this offense against his otherwise unblemished
service in Vietnam, during which he was promoted. Accordingly,
given his good post service adjustment, and since he has suffered
the consequences of an undesirable discharge for more than 30
years, the majority concludes that no useful purpose is served by
continuing to characterize Petitioner's service as having been
under other than honorable conditions, and relief in the form of
recharacterization to a general discharge is appropriate.
In view of the foregoing, the majority finds the existence of an
injustice warranting the following corrective action.
MAJORITY RECOMMENDATION:

.

That Petitioner's naval record be corrected to show that
Eas issued a general discharge on 24 February 1971 vice the

he 
undesirable discharge actually issued on that same day.

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 23 October 2002.
MINORITY CONCLUSION:

Petitioner's request does not warrant favorable action.

disagrees with the majority and concludes that

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However, the minority also

,favorable aspects of
The minority member is aware of the 
Petitioner's service and the matters in extenuation and
mitigation cited by the majority.
notes Petitioner's repetitive misconduct, which continued even
after he was given a second chance when his discharge was
Further, the minority member notes that
suspended for a year.
although Petitioner's request for discharge resulted, in part,
from a relatively brief period of UA, the other offense,
disobeying an order to get his gear and go to the field, was very
serious since it occurred in a combat zone.
The minority member also believes that considerable clemency was
extended to Petitioner when his request for discharge was
approved since, by this action, he escaped the potential
penalties of confinement at hard labor and a punitive discharge,
both of which could have been imposed if he had been convicted by
court-martial.
Petitioner received the benefit of his bargain with the Marine
Corps when his request for discharge was granted, and he should
not be permitted to change it now.
In view of the foregoing,
warranting corrective action.
MINORITY RECOMMENDATION:

The minority member also points out that

the minority finds no injustice

That Petitioner's request be denied.

a.
It is certified that a quorum was present at the Board's

4.
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
Acting Recorder
Recorder
5. The foregoing action of the Board is submitted for
and action.

your review

MINORITY REPORT APPROVED:

Q-u-03

ROBERT T. CAL1
Assistant General Counsel
(Manpower and Reserve Affairs)

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