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NAVY | BCNR | CY2006 | 08568-07
Original file (08568-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O370-5100
                                             RDZ : ecb
                                                                                           Docket No. 08568-07
                                                                                          7 December 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:
Ref:     (a) Title 10 U.S.C. 1552
En cl :    (1) Navy Discharge Review Board Decision
                   (2) Subjects naval record
1.       Pursuant to the provisions of reference (a), Petitioner a former enlisted of the Marine Corps, filed an application with this Board requesting that his discharge be upgraded and his RE-4 reenlistment code be changed.
2.       The Board, consisting of Mses. Ballinger, Prevatt and Mr. Leeman, reviewed Petitioner’s allegations of error and injustice on 4 December 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.       Petitioner’s application to the Board was filed in a timely manner.
c.       Petitioner reenlisted in the active program of the Marine Corps Reserve on 23 July 1997. He had Continuous prior service in the Marine Corps Reserve from 16 August 1988 to 22 July 1997. Among his decorations and awards were the Navy Achievement Medal, Combat Action Ribbon, Kuwait Liberation Medal and two Good Conduct Medals.




d.       O n 16 J une 2000 Petit ioner was convicte d b y civil authorities of unlawfully taking parts of a Hummer vehicle, valued at less than $500.00, property of the Marine Corps. This was a misdemeanor conviction. Apparently he was not the architect of this criminal enterprise but was rather a participant with several other Marine enlisted personnel one of whom was senior to him. Petitioner fully cooperated with civil authorities and was placed on probation and ordered to perform 40 hours of community service.
e.       As a result of his conviction Petitioner was processed for administrative separation with a recommendation for an other than honorable discharge (0TH) . Out of remorse and shame Petitioner waived his right to a hearing and all other rights except the right to make a statement and obtain copies of all official documents. Although Petitioner did not submit a statement there is a letter from a Marine Corps gunnery sergeant who was his immediate superior at the time of his conviction. In his letter the gunnery sergeant urged clemency citing Petitioner’s remorse, cooperation with civil authorities and the fact that Petitioner accepted the consequences of his actions without any complaints or excuses. Nevertheless Petitioner received an 0TH discharge on 3 February 2001.
f.       Records of the Federal Bureau of Investigation reveal the absence of any criminal activity both before and after the misdemeanor conviction that resulted in his discharge.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s discharge should be upgraded to general as a matter of clemency. The Board relies on the isolated and minor nature of his offense as evidenced by the lenient sentence imposed by civil authorities. Combine this with Petitioner’s remorse, his otherwise excellent record of service, his good conduct following his discharge, and the Board cannot help but believe that the interests of justice would be better served by a change of discharge. However since Petitioner was properly discharged for misconduct which by regulation requires the assignment of an RE—4 reenlistment code, no remedial change is warranted and Petitioner’s request for such a change should be denied.
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 the Board action.
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected to show that he was issued a general discharge on 3 February 2001 vice the other than honorable discharge.
b.       That Petitioner’s request for a change of reenlistment code be denied.
c.       That this Report of Proceedings be filed in Petitioner’s naval record.

4.       It is certified that a quorum was present at the Boards 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. ZS ALMAN        BRIAN J. GEORGE
Recorder         Acting Recorder


5.       Pursuant to the delegation of authority set out in Section
 6(e) 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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