DEPARTMENT OF THE NAVY

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

 

SMS
Docket No: 1459-08
25 September 2008

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

  

Subj: REVIEW OF NAVAL RECORD OF #7

Ref: (a) 20 U.SCe 1552
Fncel: (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 (OTH)
characterization of service that was issued on 27 November 1990.

2. The Board, consisting of Mr. amen, << . A 28.

Ms, Q@UMBMOR reviewed Petitioner's allegations of error and injustice
on 24 September 2008, and, pursuant to its regulations, the majority,
Mr. Pfeiffer and Mr. Zsalman, 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 14 September 1987, Petitioner enlisted in the Marine Corps at
age 18. At that time he had completed 12 years of education and
attained average test scores. He then served without incident for a
year. On 13 September 1988, he was counseled regarding repeated
tardiness and warned that further infractions could result in
disciplinary action or an OTH discharge. He then served without
incident until 14 November 1989, when he was counseled for chewing

tobacco during a personnel inspection.

d. On 12 February 1990, Petitioner was convicted by a summary
court-martial of failure to go to his appointed place of duty,
disobedience of a lawful order, two instances of violating a lawful
order, and assault.
e. Based on the information currently contained in the record, it
appears that although Petitioner was not diagnosed as being alcohol
dependent, he completed a two week alcohol abuse program on
16 March 1990, and was directed to participate in aftercare meetings.
On 23 March 1990, he was counseled regarding his inability to manage
his finances. On 19 June 1990, a follow-up substance abuse evaluation
stated that he previously completed substance abuse treatment, but
failed to attend aftercare sessions. On 12 July 1990, Petitioner had

nonjudicial punishment for use of provoking speech.

£. On 27 August 1990, Petitioner's commanding officer initiated
administrative separation by reason of misconduct due to minor
disciplinary infractions and convenience of the government due to
alcohol rehabilitation failure, and recommended a general discharge.
In connection with this processing, he acknowledged that separation
could result in an OTH discharge and elected to have his case heard by
an administrative discharge board (ADB). On 3 October 1990, an ADB
convened and found that he was guilty of misconduct due to minor
disciplinary infractions and recommended an OTH discharge. On
15 October 1990, he was counseled regarding his failure to comply with
operating procedures while performing his duties aS a motor vehicle
operator. On 9 November 1990, the separation authority approved the
ADB's recommendation and directed an OTH discharge by reason of
misconduct due to minor disciplinary infractions. On
27 November 1990, he was so discharged. At that time his average
proficiency and conduct marks were 3.9 and 3.82, respectively.

g. In his application, Petitioner states that he served honorably
for more than two years, received multiple letters of appreciation,
attained first class physical fitness test scores, but was discharged
because of minor misconduct. He requests that his discharge is
upgraded to a general discharge so that he may be considered for

enlistment in another branch of the armed forces.

h. Reguiations authorize issuance of an OTH discharge to service
members who are discharged by reason of misconduct due to minor
disciplinary infractions. Regulations also authorize issuance of a
general discharge for such cases.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
majority, concludes that Petitioner's request warrants relief. The
majority finds that Petitioner's two disciplinary actions were proper
and his discharge was in accordance with regulations, but also finds
that his offenses were relatively minor as evidenced by his commanding
officer's recommendation for a general discharge. The majority
further finds that Petitioner completed more than 38 months of active
service during which he maintained satisfactory proficiency and
conduct marks and received three letters of appreciation. The
majority believes that no useful purpose is served by characterizing
Petitioner's service as having been under OTH conditions. Therefore,
as a matter of clemency, the majority finds that the discharge should
be upgraded to a general discharge.
MAJORITY RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he was
issued a general discharge on 27 November 1990, vice the OTH discharge

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

11 February 2008.
MINORITY CONCLUSION:

The minority member of the Board, Ms. Wilcher, disagrees with the
majority's recommendation to change the OTH discharge to a general
discharge, and concludes that favorable action is not warranted. The
minority believes that Petitioner's overall service record does not
warrant a general discharge, given his misconduct that began one year
after enlistment and continued until he was discharged, specifically,
he was counseled on four occasions and had two disciplinary actions.

MINORITY RECOMMENDATION:
That Petitioner's request be denied.

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.

Bool Dog
ROBERT D. ZSALMAN BRIAN J. GEORGE
Recorder Acting Recorder

 

5. The foregoing action of the Board is submitted for your review and

action. ‘iS Q

W. DEAN PFEIFF

MAJORITY REPORT:

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Reviewed and Rs wed NSS. \..¢ SS \o-1-0¢
MINOR EERE ORT

Reviewed and approved: