DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SMS
Docket No: 1827-08
14 April 2009

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

Subj: REVIEW OF NAVAL RECORD OF

    

Ref: (a) 10 U.S.C. 1552

Encl: (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 undesirable discharge (UD) that was
issued on 29 September 1972.

2. The Board, consisting of Mr. RRR Mi, and

Mr .aQQM =reviewed Petitioner's allegations of error and injustice on
8 April 2009, 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, and a memorandum furnished by Headquarters
Marine Corps.

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. On 15 March 1972, Petitioner enlisted in the Marine Corps at
age 20. At that time, he had completed nine years of education which
included special education classes from third grade until ninth
grade. He had also failed entrance test examinations for the Army
and attained below average entrance test scores for enlistment into
the Marine Corps.

c. During the period 3 April to 22 June 1972, while at recruit
training, Petitioner had nonjudicial punishment on three occasions.
His offenses included three instances of unauthorized absence (UA)
that totaled 45 days. During the period 2 July to 5 August 1972, he
wak in a UA status. On 12 September 1972, he requested a UD for the
good of the service to avoid trial by court-martial for the 34 day
period of UA. On 23 September 1972, the separation authority
approved his request. On 29 September 1972, he was discharged with a
UD for the good of the service to avoid trial by court-martial.

d. On 20 May 1980, the Naval Discharge Review Board (NDRB)
considered Petitioner's request to upgrade his characterization of
service to honorable. The NDRB majority members recommended that no
relief be granted because he was found physically and mentally
qualified for enlistment and the UD was a result of the approval of
his request to avoid a trial by court-martial. The NDRB minority
member recommended that his record should be corrected to show that
he was separated with a general discharge, given his pre-service
mental retardation, which was attested to by long term observation
during his elementary school years and the questionable events
surrounding his qualifying for enlistment after failing previous
entrance tests. His counsel, provided by the Seattle Veterans'
Action Center, submitted a rebuttal to the NDRB majority's decision,
which stated in essence that he had education problems prior to
enlistment, he passed the entrance tests only after he was given the
answers by an Army officer, and that he went UA because of his
frustration over his inability to cope with training and comprehend
written instructions. His counsel also provided evidence that is not
contained in the record, of a School District Psychological Services
Child Evaluation showing that he had borderline mental functioning
and retardation of approximately five years prior to enlistment and
he stated that the majority's recommendation is based on their belief
that his capability to serve was impaired by his UA's, which is
contrary to the facts of his case. Specifically, his counsel stated
that his ability to serve was not impaired by his UA's, but by his
mental incapabilities. His counsel concluded that there is
irrefutable evidence showing that he was mentally tested to be below
normal as a child and his failure of entrance tests for the Army
supports his contention that he only passed the tests for the Marine
Corps after being coached by an officer. On 21 October 1980, the
Assistant Secretary of the Navy concurred with the NDRB majority
members' findings and recommendation.

e. In his application, Petitioner requests that his discharge be
upgraded to general so that he may continue to serve in the Coast
Guard Civilian Auxiliary. With his application he provided a letter
from the Commander, Flotilla-61, Coast Guard Civilian Reserve that
states that he is a member, attests to his work ethics and character,
and further states that he received an award in 2006 for his
contributions to boating safety. He also provided a letter of
support from the American Veterans Post 211, which states that he was
accepted into their post, has proven himself an asset, and it
recommends upgrading his discharge.

£. Regulations authorize service members to request a UD for the
good of the service to avoid trial by court-martial. Regulations
also authorize the separation authority to approve such a request but
to also authorize a general discharge in such cases.

NO
CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants relief.
Specifically, although his discharge met the requirements established
by regulations, the Board finds that he did not warrant a UD due to
his aptitude. In this regard, the Board not only agrees with the
NDRB's minority opinion, but also with his counsel's contention, that
when his case was first considered and found that his documented pre-
service mental retardation, failure of previous entrance tests, and
the questionable events surrounding his qualifying for enlistment are
sufficient bases to characterize his service as general.

Furthermore, the Board believes that his limited education and
deficiencies in his aptitude did impair his comprehension and ability
to serve. Therefore, the Board concludes that his record should be
corrected to show that he was separated with a general
characterization of service.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he
was separated with a general discharge on 29 September 1972, vice the
UD that was actually issued on that date.

b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.

c. That upon request, Veterans Affairs be informed that
Petitioner's application was received by the Board on
25 February 2008.

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. Buon) Jongh
Recorder Acting Recorder

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

action.
W. DEAN PF R
Executive r or

Reviewed and approved:

QeAS. GS.

W-71 - 04 .
RobertT.Call

Assistant General Counsel \ 3
Manpower and Reserve Affaire)