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NAVY | BCNR | CY2006 | 07789-06
Original file (07789-06.rtf) Auto-classification: Approved
                                             DEPARTMENT OF THE NAVY
 BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 SMW
 Docket No: 7789-06
23 January 2007

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) Subject’s 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 the bad conduct discharge (BCD) issued on 25 January 1977.
         2. The Board, consisting of Mr Mr. and Mr. reviewed Petitioner’s allegations of error and injustice on 18 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 Petitioner’s application 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 6 February 1975 at age 18. At the time of enlistment, Petitioner had completed nine years of education and attained average test scores. Prior to enlistment, Petitioner disclosed a pre-service arrest on charges of burglary and possession of burglary tools which were later dismissed.
d.       On 26 January 1976 Petitioner received nonjudicial punishment (NJP) for three instances of absence from appointed place of duty.
         e.       On 24 March 1976 Petitioner was convicted by special court-martial (SPCM) of two instances of larceny totaling $205.00. The court sentenced Petitioner to confinement at hard labor, forfeitures of pay, reduction in rank, and a bad conduct discharge (BCD).




         f.       On 15 June 1976 Petitioner requested clemency and restoration to duty, stating that the discharge was unreasonable and he would like to return to duty to prove his honesty and trustworthiness to the Marine Corps. A letter from Headquarters Marine Corps (HQMC) dated 29 September 1976 recommended denial of the requests for clemency and restoration to duty. On
 28 October 1976 both of Petitioner’s requests were denied. After the BCD was approved at all levels of review, on 25 January 1977 Petitioner was so discharged. At the time of discharge, Petitioner’s final overall proficiency and conduct mark averages were 3.6 and 3.2, respectively.
g.       A letter from the Discharge Review Counsel of the American Red Cross dated 13 August 1979 stated that Petitioner’s discharge was improper because a pre-service arrest record was used as a basis for the BCD, and the BCD is inequitable based on Petitioner’s length and character of service prior to the offenses for which he was discharged.
h.       A Federal Bureau of Investigation (FBI) report dated 18 January 2007 showed that Petitioner has no civil convictions.
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 Petitioner’s discharge was proper and in accordance with the law and regulations. However, the Board takes into account the final proficiency and conduct mark averages that show Petitioner’s performance of duty and conduct were above acceptable standards. Additionally, the Board considered the American Red Cross’ letter. Also, Petitioner’s length and character of service prior to the offenses did not warrant a BCD. The Board finally considered Petitioner’s 29 years of good post-service conduct as evidenced by the FBI report. Accordingly, the Board concludes that as a matter of clemency, his BCD should be changed to a general discharge.

 RECOM MENDATION:

 a.       That Petitioner’s naval record be corrected to show that he received a general discharge on 25 January 1977, vice the BCD 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 Veterans Administration be informed that Petitioner’s application was received by the Board on 31 August 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 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.

 ~        ~.
          ROBERT D. ZSALMAN
 Acting Executive Director

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