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NAVY | BCNR | CY2007 | 03404-07
Original file (03404-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                                      WASHINGTON DC 20370-5 100



SJN
                                    Docket No:3404-07
                                                                                  20 December 2007







A three-member panel of the Board, sitting in executive session consider e d your application and a majority recommended that you r naval record be corrected as set forth in the attached report d ated 13 December 2007 . In accordance dance 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 18 December 2007, disapproved the majority’s recommendation
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






DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
                                             WASHINGTON, DC. 20350-1000



December 18, 2007

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

The recommendation of the Board for Correction of Naval Records, dated December 13, 2007, is disapproved. I have considered this petition under the provisions of 10 U.S.C. § 1552 and determined that the Petitioner’s request does not warrant the relief recommended, that is, he is not entitled to have his naval record corrected to show that on March 27, 2007, he was issued an RE-i reenlistment code vice the RE-4 reenlistment code actually assigned.

The record shows that on March 1, 2007, the Petitioner was the subject of an investigation involving the possession and distribution of the prescription drug Vicodin between five recruits while at the Recruit Training Command, Great Lakes. On March 14, 2007, the Petitioner received nonjudicial punishment for dereliction in the performance of his duties in that he willfully failed to report the selling of the Vicodin pills to other recruits as it was his duty to do. On March 19, 2007, the command initiated administrative discharge action by reason of misconduct against the Petitioner. The Petitioner waived his procedural rights and elected only to obtain copies of documents supporting the basis for his separation. He was discharged on March 27, 2007, and was assigned an RE-4 reenlistment code. -
Before the Board the Petitioner contends that he was approached by another recruit who showed him $40.00 that the recruit had made for selling Vicodin. The Petitioner asserts he does not know who the recruit sold the pills to and did not ask because he did not want to get involved. He did not report the incident because he did not want to be a “snitch” and face retaliation, but knew he was wrong for not reporting the incident. The Petitioner states he has learned a valuable life lesson and wants the RE-i reenlistment code in the hope that he will be given another chance in the Navy.

A unanimous Board credits the Petitioner’s story and notes his youth and very short time in the Navy in concluding that the RE-4 reenlistment code assigned serves no useful purpose in this case. Rather, the Board believes the assignment of an RE-i reenlistment code more accurately reflects the quality of the Petitioner’s service. I disagree.

The Petitioner admits that his action was wrong and that he waived his administrative discharge procedural rights. In other words, while he was on active duty the Petitioner did not avail himself of the opportunity to consult with counsel, plead his case to the Separation Authority, and have his case reviewed by the General Court-Martial Convening Authority, the procedures established for just this purpose. Moreover, the Board’s recommendation to assign the Petitioner an RE-i reenlistment code, but leave the narrative reason for his separation (“Misconduct — Serious Offense”) and the nonjudicial punishment in his record is inconsistent. Under these circumstances, there is no injustice in denying the Petitioner’s request for relief.




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

































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

                                             SJN
                                                                                           Docket No: 03404-07
                                                                                          13 December 2007

From:    Chairman, Board for Correction of Naval Records -
 To:      Secretary of the Navy
Subj

Ref:     (a) 10 U.S.C. 1552
End:    (1) DD Form 149 with attachments
 (2)      Case Summary
( 3 ) Su b j cot s nava l record
1.       Pursuant to the provisions o~ reference (a), Petitioner , a former enlisted member of the Navy, filed enclosure (1) with this Board requesting an upgrade of his reenlistment code.
2.       The Board, consisting of Mr . Mr. and Petitioner’s allegations of error and injustice on 11 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.       Enclosure (1) was filed in a timely manner.
c.       Petitioner enlisted in the Navy on 6 February 2007 at age 18. On 1 March 2007, he was the subject of an investigation involving the possession and distribution of the prescription drug Vicodin between five recruits while at the Recruit Training Command, Great Lakes. As a result, on 14 March 2007 he received non-judicial punishment (NJP) for dereliction in the performance of his duties in that he willfully failed to report the selling of the Vicodin pills to -other recruits, as it was his duty to do. He received restriction, extra duties, and a forfeiture of pay.
 d.       On 19 March 2007, administrative discharge action was initiated by reason of misconduct due to commission of a serious offense. Petitioner waived his procedural rights and elected only to obtain copies of documents supporting the basis for separation. On 22 March 2007 his commanding officer stated, in part, that Petitioner’s actions were indicative of his unwillingness to conform to Navy rules and regulation and directed that Petitioner be discharged by reason of misconduct with an entry-level separation. On 27 March 2007, he was so discharged. At that time he was assigned an RE-4 reenlistment code, which means he was not recommended for retention.
e.       In his application, Petitioner states that he wants his reenlistment code changed so that he can reenlist in the service. He states that he was approached by another recruit who showed him $40 that he had made selling Vicodin. He states he did not now who he sold the pills to and did not ask because he did not want to gee involved. Further, he did not report the incident because he had never been in a situation like this and did not want to be known as a “snitch” and face retaliation, but concludes that he was afraid of the consequence and knew he was wrong for not reporting the incident. Finally, he states he would like to be given another chance in the Navy and has learned a great live lesson.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants favorable action.
In reaching its conclusion, the Board notes Petitioner’s youth, and very short time in the service, and after careful and conscientious consideration in this case, including his NJP for dereliction of duty, the Board concludes that although the RE-4 reenlistment code was properly assigned due to his misconduct. However, based on Petitioner’s minimal involvement, and the appearance that he may have just been an innocent by-stander or in the wrong place at the wrong time in this case, the Board concludes that the assignment of the most restrictive code serves no- useful purpose, and assignment of the RE-i reenlistment code more accurately reflects the quality of his- service.
In view of the foregoing, the Board recommends the following corrective action:
RECO MM ENDATION: -

a.       That Petitioner’s naval record be corrected to show that on 27 March 2007 Petitioner was issued an RE-i reenlistment code vice the RE-4 reenlistment code actually assigned 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 24 April 2007.




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. ZSALMAN        BRIAN J. GEROGE
Recorder         Acting Recorder


         5        Th e f oregoing action of the Board is submitted for your review and action.



                                    W. DEAN PFEIFFER
 Executive Director
                 

Reviewed approved:
         
Disapproved:


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

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