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NAVY | BCNR | CY2006 | 03437-06
Original file (03437-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
                           BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 20370-5100


                                                                                          jdh: SJN
                                                                                           Docket No: 3437 - 06
                                                                                           26 September 2006





A three-member panel of the Board, sitting in executive session, considered your application and recommended that your naval record be corrected as set forth in the attached report dated 15 September 2006. In accordance with current regulations, the designated representative of the Assistant Secretary of the Navy for Manpower and Reserve Affairs conducted an independent review of the Board’s proceedings and, by his memorandum of 21 September 2006, disapproved the panel’s majority recommended action and agreed with the panel’s minority recommendation. A copy of the designated representative’s memorandum is also attached.
You are advised that reconsideration of your case will be granted only upon the presentation of new and material evidence not previously considered by the Board and then, only upon the recommendation of the Board and approval by the Assistant secretary.
It is regretted that a more favorable reply cannot be made.


Sincerely,




                                                              
                  W. DEAN PFEIFFER
                   Executive Director




Enclosures


21 September 2006




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Subj:    BCNR PETITION OF -
I reviewed the subject petition pursuant to 10 U.S.C. § 1552 and, for the reasons outlined below, concur with the minority opinion denying Petitioner’s request to upgrade his discharge.

As the Board acknowledges, Petitioner’s discharge under less than honorable conditions was proper based on a pattern of misconduct involving two Non-Judicial Punishments, a Special Court Martial and a Summary Court Martial for offenses that included drug use and a nine day unauthorized absence. Moreover, Petitioner’s pattern of misconduct including both relatively minor and more severe offenses continued throughout his period of service. His relatively young age at enlistment does not excuse this misconduct. Additionally, Petitioner has not provided any other information to indicate that he is deserving of this change to his record.

Petitioner’s evidence is not adequate to support the conclusion that a discharge under less than honorable conditions is the result of error or injustice. Accordingly, I concur with the minority’s opinion recommending that relief be denied.




Assistant General Counsel
(Manpower & Reserve Affairs)

















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



         SJN
                                              Docket No:03437 -06
                                                                                          15 September 2006


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
End:     (1) Case Summary
 (2)      Subjects naval record
1.       Pursuant to the provisions of reference (a) , Petitioner, a former enlisted member of the Marine Corps, applied to this Board requesting an upgrade of his other than honorable discharge.
2 The Board, consisting and Mr. , reviewed Petitioner’ allegations o error and injustice on 12 September 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 Petitioners 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 to the Board was not filed in a timely manner, it is in the interest of justice to waive the statue of limitations and review the application on its merits.



                  C. Petitioner enlisted in the Marine Corps on 30 May 1980 at age 17 for four years. During the period from 1 October 1981 to 20 April 1984 he received two nonjudicial punishments (NJP’s) for two periods of unauthorized absence (UA) totaling approximately nine days, and was convicted by a special court-martial (SPCM) and a summary court-martial (SCM) of damaging government property (truck accident), use of marijuana and disobedience. The sentence of the SCM included confinement for 30 days.

d.       On 8 June 1984, administrative separation action by reason of misconduct due to a pattern of misconduct and the Petitioner elected to consult with legal counsel and subsequently requested an administrative discharge board (ADB). His commanding officer (CO) forwarded the case and recommended separation, pointing out that Petitioner had established a pattern of discreditable involvement with military authorities and drug use.
e.       Subsequently, on 15 February 1985 an ADB, unanimously found that Petitioner had committed misconduct due to a pattern of misconduct, and recommended discharge under other than honorable conditions. Subsequently, the commanding general concurred with the ADB and directed an other than honorable discharge by reason of misconduct due to a pattern of misconduct. Petitioner was so discharged on 27 June 1984, only three days before his enlistment, as extended by time lost, would have expired.
MAJORITY CONCLUSION:
Upon review and consideration of all t he evidence of record, a majority of the Board, consisting of concludes that Petitioner’s request warrants favorable actions. In reaching its conclusion, the majority initially finds that it was proper to discharge Petitioner under other than honorable conditions by reason of misconduct due to his pattern of misconduct of two NJP’s, and SPCM and SCM for offenses that included drug use. However, the majority also notes that Petitioner nearly completed his four year enlistment and at least some of his offenses were relatively minor. Accordingly, based on Petitioner’s overall record of military service, the majority concludes that the record should reflect a general discharge. In view of the foregoing, the majority recommends the following corrective action:

MAJORITY RECO MM ENDATIQN:
a.       That Petitioner’s naval record be corrected to show that on 29 June 1984 Petitioner was issued a general discharge vice the 0TH discharge actually issued on that date.
b.       That a copy of this report of proceedings be filed in Petitioner’s naval record.
c.       That upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received on 28 June 2006.

MINORITY CONCLUSION:
Ms. Ballinger disagrees with the majority and concludes that Petitioner’s request does not warrant favorable action. In this regard, the minority member notes Petitioner’s pattern of misconduct resulting in four disciplinary actions, and the wrongful use of marijuana. Even considering his length of service and the nature of all the offenses, the minority member believes this does not constitute service under honorable conditions. Thus, she believes the other than honorable discharge was not only proper but also appropriate, and should not be changed.
In view of the foregoing, the minority finds no injustice warranting corrective action.
MINORITY RECOMMENDATIONS
That Petitioner’s request be denied.
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.       The foregoing action of the Board is submitted for your review and action.

                                                                                 W. DEAN PFEIFFER
                   Executive Director


MAJORITY REPORT APPROVED:
M INORITY REPORT APPOVED:

ROBERT T. CALI
Assistant General Counsel
 Manpower and Reserve Affairs )

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