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NAVY | BCNR | CY2007 | 05380-07
Original file (05380-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
                                     BOARD FOR CORRECTION OF NAVAL RECORDS
                                                      2 NAVY ANNEX
                                              WASHINGTON DC 20370-5100



                                                                                 TRG
          Docket No: 5380-07
         4 June 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
         
         Subj:    REVIEW OF N AVAL RECORD OF
        
         Ref:     (a)      Title 10 U.S.C. 1552
                  (b)      JAG ltr JAG l 3 l.l:TDK:cse, Ser 13/5631 of 18Jan79
                  (c)      JAG ltr Jag 13 l.l:TDS:cse Ser 13/5273 of 25Jul80
                  (d)      JAG ltr JAG 131 .l:TDS:cse, Ser 13/5274 of 25Jul80
End:     (1) DD Form 149 w/attachrnents
                   (2) Case Summary
 (3)      Subject’s naval record
1.       Pursuant to the provisions of reference (a) , Petitioner, a former me mb er of the Marine Corps, filed an application with this Board requesting characterization of his service rather than the void enlistment issued on 29 June 1977.
         

         2        The Board consisting of and reviewed Petitioner’s allegation of error and injustice on20 May 2008 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 cons isted 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 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 Marine Corps on 22 October 1974 at age 19. On 11 March and 19 May 1975 he received nonjui c al punishment for two periods of unauthorized absence totaling about 20 days. On 13 November 1976 he began another period of unauthorized absence which lasted until he was apprehended on 4 April 1977, a period of about 141 days.
         d. Although the documentation to support the separation
 processing is not filed in Petitioner’s record, it appears that the unauthorized absence charge was referred for trial by a special court-martial and the charge was then dismissed due to lack of jurisdiction because his enlistment was void. This ruling was probably made because Petitioner fraudulently enlisted since his recruiter had helped him conceal pre- service criminal activity. Therefore, he was separated with a void enlistment.
e.       Pursuant to the Court of Military Appeals decision in United States v. Russo , 23 C.M.A. 511, 50 C.M.R. 650, 1 J.J.1 134 (C.M.A. 1975) and United States v. Catlow , 23 C.M.A. 142, 48 C.M.R. 758 (1974), it was determined that individuals who fraudulently enlisted in the service with the complicity of their recruiters were insulated from trial by court—martial for any offenses they committed. However, they were members of the Armed Forces for all other purposes.
f.       As indicated in references (b), (c) and (d), the Judge Advocate General (JAG) has opined that since these individuals were members of the Armed Forces for all other purposes, they should have been separated in accordance with Department of Defense directive 1332.14 of 29 September 1976, which provided binding guidance on enlisted administrative separations. That directive did not allow administrative separation or release from active duty without discharge or credit for actual time served. Elsewhere in the references, JAG discusses the ramification of backdating erroneous discharges and the possibility of issuing corrected discharges under other than honorable conditions. JAG essentially concludes that a characterized discharge may be substituted for a void enlistment, but such a discharge cannot be characterized as being under other than honorable conditions. In essence, JAG states that the discharge must be characterized as either honorable or general as warranted by the individual’s service record.
g.       In accordance with the references, the Board has routinely recommended the substitution of a general discharge for a void enlistment in cases of this nature, and such recommendations have been approved.
h.       The Uniform Code of Military Justice was changed in 1979 to essentially state that in most instances, individuals who enlisted in the Armed Forces and accepted pay and allowances are subject to trial by court-martial, even if recruiter misconduct occurred during the enlistment process.



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 was very fortunate to have had his enlistment voided because under law and regulations in effect both before and after the l970’s he would have received an adverse discharge and the Board would have probably declined to change that discharge. However, in view of the JAG opinions, the Board concludes that in this case a general discharge by reason of misconduct is the type of discharge warranted by the service record.
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 change of the void enlistment to a general discharge.
RECO MM ENDATIONS
a. That Petitioner’s naval record be corrected to show that on 29 June 1977, he was issued a general discharge by reason of misconduct vice the separation by reason of a void enlistment actually issued on that date.
b. That 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 by the Board on 10 May 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 Regulations, Section 7 23.6(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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