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NAVY | BCNR | CY2005 | 01979-05
Original file (01979-05.rtf) Auto-classification: Approved


DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

 2 NAVY ANNEX
WASHINGTON DC 20370-5100 TRG Docket No: 1979-05
28 September 2005

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

Ref:     (a) Title 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 member of the Marine Corps, filed an application with this Board requesting an honorable characterization of service on his release from active duty on 13 March 1998.
2. The Board, consisting of Mr.  Mr. and Mr. ~ reviewed Petitioner’s allegatiohs of error and injustice on 13 September 2005 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 Petitioner’s application was not filed in a timely manner, it is in the interest of justice to waive the statute of limitations and consider the application on its merits.
c.       Petitioner enlisted in the Marine Corps on 29 November 1993 for four years at age 19. He then served in an excellent manner for almost four years and was promoted to corporal. Shortly before the expiration of his enlistment, court-martial charges were filed and he was placed on legal hold. On 9 January 1998, he was convicted by a special court-martial following his guilty plea of attempted theft of more that $100 in cash, conspiracy to commit theft and breaking restriction. The court sentenced him to forfeiture of $600 pay per month for two months, confinement at hard labor for 60 days and a reduction in grade to private. He was released from active duty on 13 March 1998 with
 his service characterized as being under honorable conditions. The narrative reason for discharge was completion of required active service and he was assigned an RE-lA reenlistment code. At the end of his military obligation on 20 August 2001 he should have been issued a general discharge, however, he was inadvertently issued an honorable discharge.

 d.       The special court-martial order reveals that Petitioner was convicted of conspiring with another corporal to defraud an insurance company. The charge reads that Petitioner drove the other corporal’s car to Mexico and attempted to sell it while his co-actor filed a stolen vehicle claim with the insurance company. Petitioner claims in his application that he was unaware that the other individual was going to file an insurance claim. He admits that he plead guilty as part of a plea bargain to reduce the possible punishment. He claims that his co-actor lied and was subsequently acquitted by a special court-martial.
e.       Regulations require the characterization of service as warranted by the service record when an individual is released from active duty. Petitioner’s conduct and proficiency marks are not filed in his service record. However, given his almost four years of excellent service, it clear that his proficiency and conduct marks would have supported an honorable characterization of service.
CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Although Petitioner was convicted by a special court-martial, the punishment imposed was relatively light. He was returned to duty and was released from active duty at the expiration of his active duty obligation and was inexplicably assigned the best possible reenlistment code. The Board does not condone the offenses of which he was convicted by the special court-martial, but weighed those offenses against his otherwise excellent record. It is clear that absent the conviction by special court-martial, the characterization of his service would have been honorable. Additionally, the honorable discharge certificate issued at the end of his military obligation certainly suggests that the characterization of service on his release from active duty no longer serves any useful purpose. Given all of the foregoing factors and the possibility of disparate action taken against his co-actor, the Board concludes that Petitioner’s record should be corrected to show that his service was characterized as honorable on his release from active duty.

RECOMMENDATION:
2
a. That Petitioner’s naval record be corrected to show that 13 March 1998 he was released from active duty with his service characterized as honorable vice the under honorable conditions characterization now of record.

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

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        A E. GO DSMIT
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 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.



 W.       DEAN PFEIJ
 Executive Dir


















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