DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 01355-08
7 October 2008
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD OF 3a
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the United States Navy, filed enclosure
(1) with this Board requesting, in effect, that his bad conduct
discharge (BCD) be upgraded.
2. The Board, consisting of Messrs. WSGRRIR™, quan an Genie
reviewed Petitioner's allegations of error and injustice on
17 September 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 it appears that enclosure (1) was not filed ina
timely manner, it is in the interest of justice to waive the
statue of limitations and review the application on its merits.
c. Petitioner enlisted in the Navy on 16 April 1987 at the
age of 18. He then served for two years and three months without
incident. However, in January 1989, Petitioner was convicted at
a special court-martial (SPCM) for wrongful appropriation in
excess of $100.00. Petitioner received confinement for three
months, forfeiture of one-half one months pay for three months,
and a BCD. Petitioner claims that he returned the property to
its rightful owner with everything intact. On 30 October 1989,
Petitioner was separated with a BCD by reason of conviction at a
SPCM and was assigned an RE-4 reenlistment code.
d. Petitioner submitted numerous character references
attesting to his good character for the past 20 years.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
The Board’s conclusion is based on the belief that Petitioner’s
punishment was disproportiate to the offense. The Board takes
into consideration that although Petitioner did commit the
offense in January 1989, which resulted in a special court-
martial, he had previously returned the wrongfully appropriated
item to its rightful owner. In addition, Petitioner admitted
that what he did was wrong and regrets his actions. The Board
notes he was young and immature and did not fully appreciate the
consequences of his actions. Petitioner also submitted personal
references that affirms his character for the past twenty years.
Based on the foregoing, the Board concludes that the interests of
justice would be better served in his re-characterization to a
general discharge. Accordingly, the Board concludes that relief
in the form of a re-characterization of Petitioner’s discharge is
appropriate.
In view of the foregoing, the board finds the existence of an
injustice warranting the following corrective actions.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that
he received a general discharge on 30 October 1989 vice the BCD
issued on the same day.
b. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed, or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.
ec. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential file
Maintained for such purpose, with no cross reference being made a
part of Petitioner's naval record.
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 Graton, Homa 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 PFE
Executive d
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