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NAVY | BCNR | CY2007 | 06917-07
Original file (06917-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 S M W
 Docket No: 6915-07
21 March 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD
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 a general discharge vice the other than honorable (0TH) discharge that was issued on 15 March 1977.
2.       The Board, consisting of Mr . Ms. , and . reviewed Petitioner’s allegations of error and injustice on 19 March 2008, and pursuant to its regulations, determined that the partial 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 29 February 1972, Petitioner enlisted in the Marine Corps at age 18. On 24 October 1973, he had nonjudicial punishment (NJP) for a day of unauthorized absence (UA). On 21 December 1973, he began a period of UA. On 16 January 1974, he was apprehended by civilian authorities and held pending charges. On 21 February 1974, he was convicted in civil court of larceny of valuables worth less than $200 and sentenced to12 months of confinement
d.       On 2 December 1974, Petitioner’s commanding officer initiated administrative separation by reason of misconduct due to civil conviction. In connection with this processing, he acknowledged that separation could result in an 0TH discharge, submitted a statement, and elected to have his case heard by an administrative discharge board. On 13 December 1974, a service record entry was made which stated that his recommendation for administrative separation was forwarded to the separation authority. However, the record shows that this recommendation was not forwarded as stated.
e.       On 29 October 1975, it appears that Petitioner was released from civil confinement and was not returned to military authorities.
f.       On 29 December 1975, Petitioner requested a copy of his DD Form 214 from Headquarters Marine Corps. He stated in his request that he was discharged while in confinement and had not received a copy because the separation documents were mailed to his wife. Headquarters Marine Corps then forwarded his request to Second Marine Division, since he was still shown to be a member of that command. On 1 July 1976, civilian authorities responded to his command’s inquiry regarding his status and stated that he was sentenced to 12 months of confinement and should have already been released.
g.       On 30 August 1976, Petitioner’s commanding officer forwarded the administrative separation recommendation to the separation authority. On 21 September 1976, his commanding officer withdrew the recommendation for administrative separation because he had not returned to military control after he was released from confinement.
h.       On 12 January 1977, Petitioner was apprehended by military authorities. At that time, he informed military authorities that he had already been discharged.
1.       On 15 January 1977, Petitioner had NJP for 1118 days of UA. The NJP referred the offense to trial by special court-martial. Apparently, his command found that charges for violation of Article 86 of the Uniform Code of Military Justice were not filed within the time designated by the statute of limitations. On 25 February 1977, after consulting with counsel, he signed a waiver of his rights regarding the statute of limitations in order to facilitate his request for an 0TH discharge for the good of the service to avoid trial by court-martial for the charge of UA for the period 21 December 1974 to 12 January 1977.

j.        On 25 February 1977, he requested an O TH discharge for
 the good of the service to avoid trial by court-martial for the
1118 day period of UA. Apparently the separation authority
approved his request and directed an 0TH discharge for the good
of the service to a void trial by court-martial. On
15 March 1977, he was so discharged.
k.       In his application, Petitioner states in essence that he believes his overall service record and misdemeanor civil offense does not warrant an 0TH discharge. He further states that while he was in civil confinement, he received counsel by a military lawyer during which he signed separation documents and was then advised by the lawyer that his separation documents would be mailed to his home address and not to his place of confinement.
1.       The law and regulations in effect at that time authorized members to request an 0TH discharge for the good of the service to avoid trial by court-martial. The statute of limitations regarding violations of Article 86 of the Uniform Code of Military Justice is two years. Provisions in the law allow individuals to waive the statute of limitations if charges were not filed within two years.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Specifically, the Board finds that Petitioner’s request for an 0TH discharge for the good of the service to avoid trial by court-martial met the requirements established by the law and regulations, given that he waived the statute of limitations. However, the Board found that his command was negligent in processing the administrative separation reco mm en d ation and found that his contention that he believed he was already discharged was credible. Given his overall service record, which includes an NJP, a period of UA that began before his incarceration, and his civil conviction on 21 February 1974, the Board denies his request for upgrade of his characterization of service. However, with the exception of the UA during the period 19 to 20 October 1973, the Board is removing all other time lost except 365 days.


RECONNENDATION:
a.       That Petitioner’s naval record be corrected by removing the time lost for the period 21 December 1974 to 12 January 1977. Further correct the record to show a period of time lost from 21 December 1973 to 20 December 1974.
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 by the Board on 2 August 2007.
d.       That no further relief be granted.

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. ZSALM A N        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
4

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