DEPARTMENT OF THE  NAVY 

BOARD  FOR  CORRECTION OF  NAVAL  RECORDS 

2  NAVYANNEX 

WASHINGTON  DC  20370-5100 

TRG 
Docket No:  3546-03 
24 July 2003 

From : 
To : 

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

Subj : 

Ref: 

Encl : 

RECORD OF I 

Title 10 U.S.C. 1552 
Uniform Code of Military Justice 

Case Summary 
JAG letters of 18 Jan 79 and 25 Jul 80 
Subject's naval record 

1.  Pursuant to the provisions of reference (a), Petitioner, a 
former enlistment member in the Navy, filed an application with 
this Board requesting that his record be corrected to show an 
honorable discharge rather than a void enlistment. 

rd, consisting of Mr. 
viewed Petitioner's 

of error and injustice 
on 29 July 2003 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. 

Mr-nd 

Mr. 

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 Petitioner's application was 

not filed in a 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 24 November 1976 at 

age 17.  He then served in a satisfactory manner until 11 May 
1978.  On that date, he received nonjudicial punishment for use 
of marijuana. 

d.  On 10 August 1978 the Chief of Naval Personnel informed 
Petitioner's command that he was not eligible for enlistment due 
to failure to meet the minimum the screen score.  He was given 
the option of retention (if recommended) or separation from the 

Navy.  If separation was elected, the letter states that he was 
to be released from naval jurisdiction and informed that his 
enlistment was void.  It was directed that the file copies 
indicate the following statement was to be entered: "This 
enlistment void in accordance with the decision of the U. S. 
Court of Military Appeals in the case of U.S. v. RUSSO, 23 USCMA 
511, 50 CMR 651."  Petitioner elected separation arid his 
enlistment was voided.  He was separated from the Navy on 13 
September 1978. 

e.  Pursuant to the Court of Military Appeals Decision in 

United States v. Russo, 1 M.J. 134 (C.M.A. 1975) and United 
States v. Catlow, 23 C.M.A. 142, 48 C.M.R. 758 (C.M.A. 1974), it 
was determined that individuals who fraudulently enlisted in the 
service with the complicity of their recruiters were insulated 
from trial by court-martial for any offenses they committed. 
However, they were members of the Armed Forces for all other 
purposes.  As indicated in the advisory opinions at enclosure 
(2), the Judge Advocate General (JAG) has opined that since the 
individuals concerned were members of the armed forces for all 
other purposes, they should be separated in accordance with the 
Department of Defense Directive concerning administrative 
discharges, which provided binding guidance on enlisted 
administrative separation.  That directive did not allow 
administrative separation or release from active duty without 
discharge or credit for actual time served.  Elsewhere in the 
advisory opinions, JAG discusses the ramifications of backdating 
erroneous discharged and the possibility of issuing corrected 
discharged under other than honorable conditions.  JAG 
essentially concludes that a characterized discharge may be 
substituted for a void enlistment, but such a discharge cannot be 
characterized as being under other than honorable conditions.  In 
essence, JAG states that the discharge must be characterized as 
either honorable or general, whichever was warranted by the 
service record. 

f.  In most cases of this nature that have been previously 

considered by the Board, the records have shown that during a 
court-martial, the individual claimed that he fraudulently 
enlisted with the help of his recruiter.  This claim resulted in 
separation with a void enlistment.  m e n  if such an individual 
committed serious misconduct, the Board has routinely recommended 
the substitution of a general discharge for the void enlistment 
in accordance with the guidance of the JAG opinions at enclosure 
(2), and such recommendations have been approved.  Since there 
was no disciplinary action pending in this case and he was given 
the opportunity for retention, it is unclear why a void 
enlistment was issued. 

g.  Reference  (b) was changed in 1979 to essentially state 

that in most instances, individuals who enlisted in the armed 

forces and accepted pay and allowances are subject to trial by 
court-martial even if recruiter misconduct occurred during the 
enlistment process. 

CONCLUSION: 

Upon review and consideration of all the evidence of record the 
Board concludes that Petitioner's request warrants favorable 
action.  In this regard, the Board is aware that Petitioner 
apparently had no disciplinary action pending and was given the 
option of electing retention or separation because of a problem 
with his enlistment.  Whether or not the recruiter participated 
in a fraud cannot be ascertained from the record.  Therefore, it 
appears that using the Catlow-Russo line of cases to void his 
enlistment was erroneous.  Since Petitioner only has one NJP and 
marks that warranted an honorable characterization of service, 
the Board concludes that Petitioner's service should now be 
characterized as honorable.  Since no disciplinary action was 
pending, the Board further concludes that the reason for 
discharge should be changed to erroneous enlistment. 

The Board further concludes that this Report of Proceedings 
should be filed in Petitioner's naval record so that all future 
reviewers will understand the reason for the change in his 
record. 

RECOMMENDATION: 

a.  That Petitioner's naval record be corrected to show that on 
13 September 1978 he was issued an honorable discharge by reason 
of erroneous enlistment vice the void enlistment now of record. 

b.  That this Report of Proceedings be filed in Petitioner's 
naval record. 

c.  That the Department of Veterans Affairs be informed upon 
request that Petitioner's application was received by the Board 
on 7 April 2003. 

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. 

/fl* 

ROBERT D. ZSALMAN 
Recorder 

ALAN E. GOLDS 
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.