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NAVY | BCNR | CY2006 | 04203-06
Original file (04203-06.rtf) Auto-classification: Approved
•        DEPARTMENT OF THE NAVY
         BOARD FOP CORRECTION OF NAVAL RECORDS
         2 NAVY ANNEX
         WASHINGTON DC 203705100
          TRG
 Docket No: 4203-06
 1 November 2006
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF

Ref:     (a) Title 10 U.S~C. 1152
          Encl:    (1) Case Summary
(2) Subject’ s naval record

1        Pursuant to the provisions of reference Petitioner, an former enlisted member of the Navy, filed an application with this Board requesting a better Characterization of service than the discharge under other than honorable conditions now of record.
2.       The Board, consisting of Mr. reviewed Petitioners allegations of error and injustice on 18 October 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, re gulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioners allegation 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.       Petitioner enlisted in the Naval Reserve on 26 May 1989 at age 26. The record shows that he was born in Jamaica and is a naturalized U. S. Citizen.
d.       Petitioner reported for 36 months of active duty on 1 July 1989. On 5 September the Commanding Officer, Recruit Training Command (RTC) reported that Petitioner had not disclosed all of his dependent children at the time of his enlistment. RTC stated that an investigation revealed that Petitioner’s recruiter told him that since his children resided in Jamaica, they did not
 have to be disclosed.

 e.       Petitioner completed recruit training and on 13 September 1989 reported to his first duty station. On 26 September 1989, the Navy Military Personnel Command (NMPC) informed RTC that Petitioner was being retained in the Navy. However, as indicated, he had already reported to his first duty station.


f.       Petitioner received nonjudicial punisliment on 30 April and 9 June 1990 for disobedience and disrespect. On 9 June 1990 he was notified of separation processing by reason of fraudulent enlistment because of his failure to disclose the correct number of his dependents at the time of enlistment. Petitioner was informed that the least favorable characterization of service would be a general discharge. At that time, Petitioner stated “I do not object to this separation.” On 14 June 1990, the commanding officer recommended discharge. On 26 June 1990, NI4PC returned the discharge package for reprocessing because the regulations required processing for all reasons that would apply to the case.
g.       On 30 June 1990, Petitioner was notified of discharge processing by reason of fraudulent enlistment and misconduct due to commission of a serious offense. He was informed that the characterization of service could be under other than honorable conditions. In connection with this processing, Petitioner elected to waive the right to have his case heard by an administrative discharge board. After review, NMPC directed discharge under other than honorable conditions by reason of misconduct. Petitioner was so discharged on 6 August 1990.
h.       Petitioner contends, in effect, that he should not have been processed for discharge by reason of fraudulent enlistment because his recruiter had told him not to list all of his dependents. He further contends, in effect, that since he had only been in the United States for a few months, he did not understand his rights and had difficulty adjusting to life in the Navy.
CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. The Board believes that Petitioner’s command was unaware that his fraudulent enlistment had been reviewed by NMPC and he had been retained in the Navy. Since fraudulent enlistment was the only reason for the initial discharge recommendation, it suggests that the command believed that the misconduct for which he received NJP, standing alone, did not warrant discharge. The
subsequent action by NMPC to return the discharge package opened up the possibility for discharge under other than honorable conditions. Given these factors, the Board concludes that separation was warranted, but the initial recommendation for a general discharge should have been approved.

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 reasons for recharacterization of the discharge.

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that on 6 August 1990 he was issued a general discharge by reason of misconduct vice the discharge under other than honorable conditions now of record.

b. That this Report of Proceedings be filed in Petitioner’s naval record.

c. That the Department of Veterans Affairs be informed upon request that Petitioner’s application was received by the Board on 16 May 2006.

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.
W. DEAN PFEIFFER
Executive Director




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