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NAVY | BCNR | CY2005 | 03845-05
Original file (03845-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
                           WASHINGTON DC 20370-5 100      
                                                                        SMW
                                                                         Docket No: 3845-05
                                                      5 May 2006


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

Ref:     (a) 10 U.S.C. 1552
Encl:    (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 N avy Reserve, applied to this Board requesting, in essence, a better characterization
 of service than the bad conduct discharge actually issued on 3 January 1944.
         2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 3 May2006 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 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 Reserve on 14 August 1942 at the age of 19 and began serving a two-year period of active service. At that time he had completed 10 years of education.
d.       On 5 February 1943 Petitioner received a deck court (DC) for a one-day period of unauthorized absence (UA). The court sentenced him to 10 days of confinement on bread and water with full rations each fifth day.

          e.       On 2 May 1943 Petitioner was charged with refusing to go to work until ordered by a chief petty officer. On 8 May 1943 Petitioner was admitted to the hospital for chronic tonsillitis, which he had been suffering from for about two weeks. He subsequently received a tonsillectomy.
         f.       On 9 August 1943 Petitioner was charged with leaving the station without authorization on liberty and was placed in the brig, but no disciplinary action was taken.


         g.       On 5 November 1943 Petitioner received another DC for about 12 hours of UA that occurred after working hours. The court sentenced him to 15 days of solitary confinement on bread and water with full rations each third day.
         h.       On 9 November 1943 the DC’s punishment of 5 November 1943 was published and Petitioner was charged and convicted by summary court-martial (SCM) on that same day of breaking arrest and falsehood. The court sentenced him to $162 in forfeitures of pay and a bad conduct discharge (BCD).
         i.       After the BCD was approved at all levels of review, Petitioner was separated with a bad conduct discharge on 3 January 1944.
         j        Concerning Petitioner’s medical diagnosis of tonsillitis, the record shows that he was initially charged with refusing to go to work until ordered by a chief petty officer. The record also shows that Petitioner had been suffering from acute tonsillitis for a week prior to the charge and a week following the charge, yet he continued to obey all other orders.
         k.       Concerning the court-martial conviction, circumstances surrounding the charges and subsequent conviction by court-martial of breaking arrest and falsehood are not clear. Since Petitioner was not charged with UA, it was evident that he never left the military installation, yet he was charged with breaking arrest on the same day the court-martial’s sentence was published. There is also no evidence in the record regarding the offense of falsehood, except a Board of Review of Discharge conducted on 1 December 1949, which states the falsehood was a statement made by Petitioner claiming the commission of sodomy with another enlisted man. There is no other evidence of such a statement.
1.       In his application, Petitioner contends that he was discharged for coming in late one evening, and the actions were racially motivated.

CONCLUSION:

 Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. Specifically, the Board believes that discrimination was a likely factor in Petitioner’s case since at least some of the offenses probably would not have resulted in disciplinary actions if he had not been African-American. Furthermore, the offenses for which he was convicted by court-martial that resulted in his discharge, appear to be minor and unfounded. The offense of breaking arrest would not appear to warrant a bad conduct discharge, and there is no evidence in the record to support the offense of falsehood. If Petitioner had made such a statement, it was likely made to escape continued punishment. Petitioner’s contention of being discharged for coming in late apparently has merit since the sequence of events documented in the record supports his contention. In addition, there was no record of disrespect, poor performance of duty, flagrant misconduct, or incompetence. Based on the foregoing, the Board believes Petitioner’s conduct does not warrant a bad conduct discharge, and it should be upgraded to a general discharge.

 RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected to show that on 3 January 1944 he received a general discharge vice the bad conduct discharge actually issued on that date.
b.       That this Report of Proceedings be filed in Petitioner’s naval record.

c.       That, upon request, the Veteran’s Administration be informed that Petitioner’s application was received by the Board on 18 May 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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