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NAVY | BCNR | CY2005 | 07313-05
Original file (07313-05.rtf) Auto-classification: Approved

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
 WASHINGTON DC 20370-5100

                                                                                          TRG
 Docket No: 7313-05
22 February 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW 0 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, an enlisted member of the Navy, filed an application with this Board requesting, in effect, that a summary court-martial be removed from his record or, in the alternative, that the court-martial sentence be reduced.
2. The Board, consisting of Mr.  Mr. .and Mr. ~reviewed Petitioner’s allegations of error an injustice on 30 January 2007 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.       Although the record is incomplete, it appears that Petitioner enlisted in the Naval Reserve in February 1993 as a temporary petty officer third class (YN3; E-4) under the provisions of the Advanced Pay Grade Program. It also appears that he completed the requirements to become a permanent YN3.
d.       On 30 May 1995, Petitioner enlisted in the Regular Navy as a seaman apprentice (SA; E-2) in exchange for guaranteed assignment to Operational Specialist (OS) “A” school. He could not be enlisted as a YN3 because that rating was over strength.
 On 18 July 1995 he acknowledged that he was not eligible for his guaranteed assignment to OS “A” school because of a medical disqualification. He subsequently completed yeoman “A” school while serving as an SA.

e.       Petitioner apparently thought that since he had not received his guaranteed training, he should not have been reduced to E-2 and began wearing the insignia of a YN3. A summary court-martial convened on 13 December 1995 and convicted him of disobedience and impersonating a petty officer. The court sentenced him to 30 days restriction, forfeitures of pay and a reduction in rate from SA to seaman recruit (SR; E-1).
f.       Petitioner applied to the Board in 1995, contending that since he did not receive the guaranteed training, he should have been enlisted in his permanent grade of YN3. He stated that he was told by his recruiter that he would be reverted to YN3 if he did not receive the training for which he enlisted. An advisory opinion from the Bureau of Naval Personnel stated that since the YN rating was over strength, there was no possibility that he would have been enlisted as a YN3 or even a yeoman seaman (YNSN;
 E-3). After consideration, the Board found, in effect, that although he had voluntarily enlisted as an SA, his subsequent medical disqualification had created an inequity. After considering the advisory opinion, the Board concluded that his record should be corrected to show that he enlisted on 30 May 1995 as a YNSN.
g.       Petitioner has continued to serve on active duty since his enlistment in the Regular Navy and at the time of his current application, he was serving as a YN2 (E-5). He is now requesting that the 13 December 1995 summary court-martial be removed from his record. He contends that since the previous action of the Board confirmed that he was improperly reduced to E-2, the summary court-martial was also unjust.
h.       Petitioner has been informed that the Board is prevented by law from reviewing courts-martial and must limit its review to determining if the sentence should be reduced as a matter of clemency.
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants partial favorable action. Clearly Petitioner knew or should have known that he was not eligible to wear the insignia of a YN3 when he had enlisted in the Navy only six months previously as an E-2. Therefore, it appears he was properly convicted by the courtmartial of impersonating a petty officer. However, the earlier

















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Board did find that enlistment in the Navy as an SN was more appropriate, and his record has been corrected to reflect this action. Accordingly, the Board concludes that since the record now reflects that he was serving as an SN on 13 December 1995, at the time of the summary court-martial sentence which reduced him from SA to SR, the record should be corrected to show that on 13 December 1995 he was reduced by the summary court-martial from SN to SA vice from SA to SR.
Since the Board’s previous action discussed in the foregoing is filed in Petitioner’s record, 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 the summary court-martial sentence.

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected to show that on 13 December 1995, he was reduced from SN to SA, vice the reduction from SA to SR now of record.

b.       That no action be taken on Petitioner’s request to remove the summary court-martial documentation from his record.

c.       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        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 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.
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