DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 04013-08
9 February 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj:
7 NAVAL RECORD Cy psitggiigaianihe
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 other than
honorable (OTH) discharge be upgraded.
The Board, consisting of Messrs. gir, eae and
a reviewed Petitioner's allegations of error and injustice
on 23 January 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.
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 reenlisted in the Navy on 15 February 1989 for
his third term. On 5 November 1991, Navy Criminal Investigative
Service (NCIS) conducted and completed their investigation
regarding alleged misconduct regarding stolen merchandise,
unaccounted for supplies, and the illegal adjustment of the
ship’s inventory records. As a result of the investigation, on
18 March 1992, he received nonjudicial punishment (NJP) for
conspiracy, dereliction of duty, making a false official
statement, and forgery. He claims that although he knew of the
discrepancies, he was not illegally adjusting the records. He
claims that his division officer was illegally adjusting the
records. Administrative separation action was initiated based on
COSO and he was offered an administrative discharge board (ADB).
He requested an ADB which recommended that he be separated from
military service with OTH discharge. The commanding officer
endorsed the separation, but recommended a general discharge.
However, the separation authority directed an OTH discharge, and
on 1 August 1992, he was separated with an OTH discharge and an
RE-4 reenlistment code.
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 disproportionate to the offense. The Board takes
into consideration his outstanding military service from 1977 to
1991, although he did commit the offense which resulted in an
NJP. Based on the fact that his superior officer was involved in
the misconduct, the Board believes that he was not the initiator
in the offense. In addition, he admitted that what he did was
wrong in not informing the chain of command of his superior’s
illegal actions and regrets his actions. The Board notes he was
naive and did not fully appreciate the consequences of his
actions. Furthermore, the Board concurs with the commanding
officer's original recommendation of a general discharge based on
his prior outstanding service. Based on the foregoing, the Board
concludes that the interest of justice would be better served in
his recharacterization to a general discharge.
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 1 August 1992 vice an OTH
discharge issued 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.
c. 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.
Canter \ Annargr
ROBERT D. ZSALMAN BRIAN J. 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
Executive d
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