DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
RDZ:ecb
Docket No. 02844-08
11 December 2008
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the
United States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 9 December 2008. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted
of your application, together with all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
Your record reflects that you enlisted in the Navy on 11 June
1984 at age 22. On 23 July 1985 the Naval Investigative Service
(NIS) reported to your command that it had evidence that you had
fraudulently enlisted by your failure to disclose a preservice
civil conviction for theft in the first degree by civil
authorities in Hilo, Hawaii. On 4 December 1985 you were tried
and convicted by summary court-martial for two instances of
dereliction of duty involving classified materials and larceny
of money aboard ship. After your court-martial conviction an
administrative discharge board (ADB) was convened to determine
whether or not you should be retained in the Navy or separated
with an other than honorable (OTH) discharge. At the conclusion
of these proceedings where you were represented by a military
lawyer the ADB found that you had committed misconduct by
fraudulently enlisting and then committing serious offenses,
however rather than follow the recommendation of your commanding
officer for an OTH discharge it recommended retention based on
your remorse for your actions as well as your satisfactory work
performance.
In accordance with applicable Navy regulations your commanding
officer transmitted the results of the ADB proceedings to the
Commander, Naval Military Personnel Command (NMPC) urging that
the ADB’s recommendation for retention be disapproved and that
you be discharged, but because of the recommendation for
retention, that you receive a general discharge under honorable
conditions rather than an OTH discharge. A copy of your
commanding officer’s letter to NMPC dated 26 March 1986 is
enclosed. NMPC forwarded this matter to the Assistant Secretary
of the Navy for Manpower and Reserve Affairs (ASN) for final
resolution. On 5 May 1986 ASN disapproved the ADB's
recommendation for retention and directed that you be discharged
due to fraudulent enlistment with a general discharge which you
received on 4 June 1986.
Based on the evidence before it the Board concluded that ASN’s
action was neither arbitrary nor capricious but rather had both
a sound factual and legal basis, namely, fraudulent concealment
of a serious preservice civil conviction followed by repeated
and serious military offenses. The Board believed that you were
indeed fortunate to have received a general discharge since
service members with disciplinary records similar to yours are
routinely issued OTH discharges. Clearly your discharge was
properly issued and under all facts and circumstances of your
case the Board decided it should not be changed now as a matter
of clemency.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon
request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
DWeee
W. DEAN PFEIBFE
Executive Dixzkéc
Enclosure
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