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NAVY | BCNR | CY2005 | 01710-05
Original file (01710-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
          WASHINGTON DC 20370-5100                                                     

                                             SMW
 Docket No: 1710-05
9 March 2006

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

Ref:     (a) 10 U.S.C. 1552
End:     (1) Case Summary
 (2)      Subject’s Naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
 former enlisted me mb er of the United States Marine Corps, applied to this Board requesting an honorable characterization of service instead of the undesirable discharge actually issued on 19 July
1963.
2. The   Board, consisting of and Mr. reviewed Petitioner’s
 alleg ations of error and injustice on 8 March 2006, 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 Petitioner’s application was filed not filed in a timely manner, it is in the interest of justice to waive the statue of limitations and review the application on its merits.
c.       Petitioner enlisted in the Marine Corps on 12 July 1961 at age 19. On 29 August 1961 the commanding officer waived a fraudulent enlistment due to an undisclosed pre-service civil conviction and allowed him to remain at recruit training.

d.       On 13 May 1962 a civil arrest report was completed after a complaint of child molestation was filed against Petitioner, but no charges were filed. On 14 February 1963 another civil
 complaint of rape and illegally entering a residence was filed, but again no charges were filed.
e.       On 25 April 1963 Petitioner was convicted by summary court-martial (SCM) of larceny, specifically, stealing a charitable donation can from a liquor store.
f.       On 9 May 1963 Petitioner was convicted by civil court of petty theft and trespassing, specifically, unlawfully entering a residence and stealing a watch.
g.       On 24 June 1963 the commanding officer initiated administrative separation action by reason of misconduct due to civil conviction, but recommended retention. At that time, Petitioner was advised that he could receive an undesirable discharge, and he waived the right to have his case heard by an administrative discharge board (ADB). On 12 July 1963 the separation authority directed Petitioner be separated by reason of unsuitability. On 19 July 1963 he was separated with an undesirable discharge by reason of unsuitability.
h.       In his application, Petitioner states that he would have received an honorable discharge under current standards and requests that his undesirable discharge be upgraded to an honorable discharge.
1.       The Board is aware that the separation authority had the authority to direct a discharge by reason of unsuitability. However, regulations authorized no less than a general discharge for service members who are separated for this reason.
j.        The Board is also aware that characterization of service by reason of unsuitability is determined by the member’s military record, proficiency and conduct averages, and information pertaining to the military record.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Specifically, the Board believes disciplinary actions against Petitioner were proper, but concludes that the characterization of service was not in accordance with regulations in effect at that time, due to the separation authority’s decision to separate him by reason of unsuitability. Therefore, Petitioner should have received no worse than a general discharge. Given his conviction by SCM, the civil conviction, and the proficiency and conduct mark averages, the Board concludes that Petitioner’s separation should be changed to a general discharge.



2
RECONNENDAT ION:
 a.       That Petitioner’s Naval record be corrected to show that he received a general discharge on 19 July 1963, vice the undesirable 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 3 March 2005.
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        ALAN E. GOLDSMITH
Recorder         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 Regulation, 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.


                                                               W. DEAN PFEIFFER
                                                                         Executive Director

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