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NAVY | BCNR | CY2007 | 03364-07
Original file (03364-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                                             SMW
                                                                                           Docket No: 3364-07
                                                                                          7 December 2007

From:    Chairman, Board f or Correction of Naval Records
To:      Secretary of the Navy
Subj:
Ref:     (a) 10 U.S.C. 1552
End:     (1) Case Summary
                   (2) Subjects naval record
1.       Pursuant to the provisions of reference (a), Petitioner 1 a former enlisted member of the Marine Corps, applied to this Board requesting an honorable or general discharge vice the other than honorable (0TH) discharge that was issued on 20 March 1997.
2.       The Board, consisting of Mr. Mr. and reviewed Petitioner’s allegations of error and injustice on 5 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.       Although 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.       On 21 September 1993, Petitioner enlisted in the Marine Corps at age 18. He then served without incident for more than 30 months. On 11 March 1996, he was counseled regarding alcohol abuse, recommended to attend residential alcohol abuse treatment and warned that further infractions could result in administrative separation. On 14 March 1996, he was assigned to the Marine Corps weight control program. At that time his weight was 239 pounds with a target weight of 203 pounds.
d.       On 15 April 1996, Petitioner had nonjudicial punishment (NJP) for failure to obey a lawful order, making a false official statement, wrongful appropriation of a weight control package, and destruction of government property.
e.       On 21 June 1996, Petitioner departed his command to attend residential alcohol abuse treatment. On 21 August 1996, Petitioner returned to his command after successful completion of treatment.
f.       On 20 September 1996, Petitioner had NJP for a brief period of unauthorized absence, failure to obey a lawful order, and assault. All of these offenses occurred while attending residential alcohol abuse treatment.
g.       On 17 October 1996, Petitioner’s weight was 228 pounds.
h.       On 4 November 1996, Petitioner was dropped from the substance abuse aftercare program after missing several appointments, and recommended for discharge due to alcohol rehabilitation failure.
i.       On 4 November 1996, Petitioner’s commanding officer initiated administrative separation by reason of misconduct due to a pattern of misconduct and by reason of convenience of the government due to weight control failure. In connection with this processing, Petitioner acknowledged that separation could result in an 0TH discharge and elected to have his case heard by an administrative discharge board (ADE). On 10 December 1996, the ADB found that Petitioner was guilty of misconduct due to a pattern of misconduct. The majority of the ADB recommended an 0TH discharge, however, two members dissented, one of which was the senior member of the ADB. The dissenting opinion stated that Petitioner’s length of satisfactory service, combined with his average proficiency and conduct marks, and the mitigating circumstances surrounding the case justified leniency in the characterization of service. On 6 March 1997, the separation authority directed an 0TH discharge by reason of misconduct due to a pattern of misconduct. On 20 March 1997, he was so discharged.


j .       Petitioner states that he served without incident on two assignments before he reported to an east coast duty station that had a stressful work environment. He further states that it was during this time that he received news of his parent’s marital problems and two of his closest childhood friends suffered violent deaths. He further states that other than the two NJP’s that he received during a six month period, his record was exemplary. Petitioner provided letters of reference, evidence of good post service conduct and achievements that includes his earning of an Associate’s Degree, Bachelor of Science Degree and coaching license.
k.      The Board is aware that during the time of Petitioner’s service, regulations authorized service members to be administratively separated with an 0TH discharge by reason of misconduct. Regulations also authorized a general characterization of service.
         CONCLUSION:
Upon review and consideration of all evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Specifically, the Board is aware that Petitioner’s disciplinary actions were proper and the discharge was processed in accordance with regulations. Therefore, separation by reason of misconduct due to a pattern of misconduct was warranted. However, the Board considers Petitioner’s 30 months of satisfactory service and notes that his disciplinary actions occurred within a five month period of time. The Board also considers Petitioner’s personal problems during the time of his disciplinary actions, good post-service conduct, letters of reference, completion of several college degrees and the ADB’s dissenting member’s opinion who recommended a general discharge. Therefore, as a matter of clemency, the Board concludes that Petitioner’s separation should be changed to a general discharge.
         RECO MM ENDATION:
a.       That Petitioner’s naval record be corrected to show that he was separated with a general discharge on 20 March 1997, vice the 0TH discharge actually issued on that date.
b.       That no further relief be granted.
c.       That a copy of this Report of Proceedings be filed in Petitioner’s naval record.
d.       That upon request, the veterans Administration be informed that Petitioner’s application was received by the Board on 11 April 2007.
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        BRIAN J. GEORGE
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.


                                                      W. DEAN PFEIFFER
Executive Director

                                                      

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