DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100
                                                         SMW
                                                         Docket No: 2999-05
                                                         24 October 2005


       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
             (b) Uniform Code of Military Justice

       End: (1) Case Summary
             (2) Subject’s Naval record

       1.   Pursuant to the provisions of reference (a), Petitioner, a
       former enlisted member of the United States Naval Reserve, applied to
       this Board requesting that his record be corrected to show that he
       was separated with an honorable or general discharge on 12 May 1978,
       and be given credit for the time served vice the void enlistment
       actually issued on that date.

       2.   The Board, consisting of Mr.
               reviewed Petitioner’s allegations of error and injustice on
       19 October 2005, 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 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 Naval Reserve on 9 January 1976
       at the age of 18. At that time he disclosed five traffic violations.

          d.      On 21 September 1977 Petitioner received nonjudicial
       punishment (NJP) for about a 22 day unauthorized absence (UA). On 24
       April 1978 it was discovered that Petitioner’s fraudulently







enlisted with the complicity of his recruiter by failing to disclose all
traffic violations. On 28 April 1978 he was apprehended by military
authorities for allegedly selling marijuana. The separation authority
subsequently directed a void enlistment.

    e. Pursuant to the Court of Military Appeals decision in United States
v. Russo, 23 C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (C.M.A. 1975) and United
States v. Catlow, 23 C.M.A. 142, 48 C.M.R. 758 (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 an y offenses they committed. However, they were members of the Armed
Forces for all other purposes. As indicated in advisory opinions from the
Judge Advocate General, since these individuals were members of the Armed
Forces for all other purposes, they should have been separated in
accordance with Department of Defense Directive 1332.14 of 29 September
1976, which provided binding guidance on enlisted administrative
separations. 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 discharges and the possibility of issuing corrected
discharges 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, as is warranted by the
individual’s service record.

    f. In cases of this nature, even if the 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. Such recommendations have been approved.

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




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CONCLUSION:

Upon review and consideration of all the evidence of record, the Board
concludes that Petitioner’s request warrants partial favorable action. The
Board’s finding is based upon the circumstances of the case and
particularly the opinions from JAG. In view of Petitioner’s record, the
Board concludes that a general discharge by reason of misconduct is the
type of discharge warranted.

RECOMMENDATION

    a. That Petitioner’s Naval record be corrected to show he was separated
with a general discharge by reason of misconduct on 12 May 1978, vice the
separation by reason of void enlistment actually issued on that date.

    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      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.







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