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NAVY | BCNR | CY2007 | 07816-07
Original file (07816-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 SMM
Docket No:7816-07
19 May 2008
From:    Chairman, Board for Correction of Naval Records
 To: Secretary of the Navy
Subj     R E VIEW 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 either a general or honorable discharge vice
the other than honorable (0TH) discharge that was issued on
9 November 1990.
2.       The Board, consisting of Mr. Mr. and ___ reviewed Petitioner’s allegations of error and injustice on 14 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 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 3 August 1987, Petitioner enlisted in the Marine Corps at age 18 and served without incident for more than a year. During the period 29 August 1988 to 15 December 1989, he had two nonjudicial punishments (NJP’s) and was convicted by a summary court-martial for failure to obey a lawful order, possession of nunchakas, assault, and breaking restriction. On 11 January 1990, he was married. On 14 January 1990, he was counseled regarding his
misconduct and warned that further infractions could result in disciplinary action or administrative separation. On 15 January 1990, he had NJP for failure to obey a lawful written order.
d.       On 6 July 1990, he was counseled regarding six American Red Cross (ARC) messages that his command received regarding his family’s financial instability and wife’s miscarriage. He was also advised at that time, that further infractions could result in disciplinary action or administrative separation. On 15 August 1990, the chaplain provided a letter to the commanding officer which stated that Petitioner and his wife were both immature, and that after one problem was resolved, another problem would arise. He concluded by recommending that Petitioner should be discharged for the good of the service. On 27 August 1990, he had NJP for a brief instance of UA.
e.       On 17 September 1990, Petitioner’s commanding officer initiated administrative separation by reason of misconduct due to a pattern of misconduct. In connection with this processing, he acknowledged that separation could result in an 0TH discharge and waived the right to have his case heard by an administrative discharge board (ADB). On 19 October 1990, the separation authority approved the separation recommendation and directed an 0TH discharge by reason of misconduct due to a pattern of misconduct. On 9 November 1990, he was so discharged.
f.       Petitioner states that at the time of his discharge, he had less than one year remaining on his contract and there were several things occurring in his youth that were documented by the chaplain. He further states that he believes that his infractions were those of immaturity and the stress of being married at a young age and raising children. He further states that he is still married to his wife and one of his children has been invited to attend West Point. With his application, he provided a recent civilian performance review that shows he is employed as an account services officer at a bank.
g.       Regulations authorize issuance of an 0TH discharge for members discharged by reason of misconduct. Regulations also authorize a general discharge for such cases.



2











CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants favorable action. Specifically, the Board is aware that his characterization of service was properly assigned. Nevertheless, the Board finds Petitioner’s contentions of immaturity and personal problems credible as evidenced by the six ARC messages and the chaplain’s recommendation for separation. In addition, the Board considered his period of good service, more than six months of sea, service, and finds that his offenses were relatively minor. Therefore, as a matter of clemency, the Board concludes that his discharge should be changed to general.
RECOMMENDATION:
a.       That Petitioner’s naval record be corrected to show that he was separated with a general discharge on 9 November 1990, vice the 0TH discharge issued 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 by the Board on 28 August 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. EORGE
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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