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NAVY | BCNR | CY2005 | 07959-05
Original file (07959-05.rtf) Auto-classification: Approved
                                                     
                                                      CRS
          Docket No: 7959-05
         23 February 2006

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD
Ref:     (a) Title 10 U.S.C. 1552
 (b)      SECNAVINST 1910.4B
En cl ; (1) DD Form 149 w/attachrnents
 (2)      Case Summary
(3)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected to show a more favorable type of discharge and reason for discharge than the general discharge by reason of misconduct issued on 25 November 1998. Additionally, he requests that his reentry code of RE-4 be changed and that his records be corrected to show that he was a seaman (SN; E-3) at the time of discharge.
2 The Board, consisting of Messrs and reviewed Petitioner’s allegations of error and injustice on 23 February 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 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 review the application on its merits.
c.       Petitioner enlisted in the Navy on 30 January 1996. He then served for more than two years without incident, advancing in rate to petty officer third class (0S3; E-4).
 d.       The record reflects that on 3 July 1998 Petitioner received nonjudicjal punishment (NJP) for disobeying a lawful command from a superior commissioned officer. The record provides no details concerning the order that Petitioner disobeyed. The punishment imposed consisted of a forfeiture of $568 per month for two months, restriction and extra duty for 60 days, and reduction in rate from OS3 to SN.
e.       On 3 September 1998 Petitioner received a second NJP for failure to go to his appointed place of duty to receive an anthrax vaccination. His medical record reflects that on 1 November 1998 Petitioner refused to receive an anthrax vaccination. On 2 November 1998 Petitioner received a third NJP for willfully disobeying a superior commissioned officer. On 9 November 1998 the commanding officer set aside the last two NJPs for unknown reasons.
f.       On 11 November 1998, after Petitioner was advised of administrative separation action and waived his right to an administrative discharge board, his commanding officer (CO) recommended that Petitioner be separated with a general discharge by reason of misconduct due to commission of a serious offense. In making the recommendation, the CO referenced the NJP of 3 July 1998, and stated that Petitioner was incapable of adhering to the rules and regulations of the Navy and his command. He stated that Petitioner was simply unwilling to conduct himself in a manner conducive to good order and discipline. The discharge authority approved the separation and directed a general discharge by reason of misconduct. Petitioner was so discharged on 25 November 1998 as an SN. At that time, Petitioner was assigned a reenlistment code of RE-4.
h.       Reference (b) states that an individual may be separated by reason of best interest of the service if separation is appropriate but no other reason set forth in the reference covers the situation at hand. An RE-l reenlistment code may be assigned if an individual is separated for this reason.
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. The Board’s decision to grant Petitioner’s request is based on its acceptance of his contention that all of his NJPs were related to his refusal to received a vaccination against anthrax.




2



RECOMMENDATION.


a.       That Petitioner’s naval record be corrected to show that he was issued an honorable discharge by reason of best interest of the service on 25 November 1998 and a reenlistment code of RE-i, vice the general discharge by reason of misconduct and a reenlistment code of RE—4 actually issued on that date.
b.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
c.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of 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 72 3.6(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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