{
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket Neo: 06397-08
6 July 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: FORMER Siena
REVIEW OF NAVAL RECORD
Ref: {a) Tile 10 U.S.C. 1552
Enel: (1) DD Form 149 dtd 25 June 2009 w/attachments
{2) DD Form 214 dtd 27 May 05
(3) Commander, Naval Personnel Command message dtd 161400Z May
2005
(4) FBI Identification Record
(5) Office of the Clerk of Court, Parish of Orleans, Criminal
District Court Docket Master dtd 13 Mar 09
1. Pursuant to the provisions of reference (a), Subject, hereinafter
referred to as Petitioner, filed written application, enclosure (1),
with this Board requesting, in effect, that his naval record be
corrected by showing he completed and retired after 20 years of active
duty service.
siidiiiais Board, consisting of Ms RRR nd Messrs i Mm and
MEN. considered Petitioner's allegations of error and injustice
on 55) March 2009. Pursuant to its regulations, the Board determined _
that relief should be granted. 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 which were available under existing law and
regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
ec. On 21 July 1986, Petitioner enlisted in the Navy and served
without disciplinary action until 13 June 1989, when he was convicted
of driving under the influence (DUI) of alcohol. Then, on 18 May
1997, Petitioner was convicted in civil court of domestic violence and
criminal trespassing. On 21 March 2001, he was again arrested and
convicted in civil court of domestic violence, and bodily injury to
his spouse. Furthermore, Petitioner was again arrested on 23 July
2004, for DUI and possession of an illegal substance (marijuana) in
his vehicle.
d. Petitioner was processed for administrative separation due to
his second DUI {alcohol rehabilitation failure). He requested an
administrative discharge board (ADB). In 2005, an ADB was held and
found misconduct, but they voted to retain him due to his exemplary
military service for 18 years. It is important to note that
Petitioner was never prosecuted by civil or military authorities for
drug possession. Petitioner never tested positive for drug use and
the district attorney refused to prosecute the case for drug
possession. However, after the ADB voted to retain Petitioner, his
commanding officer, in his endorsement letter, stated that he
disagreed with the ADB’s decision to the retain him and recommended
separation with a general discharge. The case was then forwarded to
the Naval Personnel Command where separation was ultimately approved
by the office of the Secretary of the Navy.
e. In June 2008, Petitioner submitted a request to this Board
requesting that his retirement with 20 years of service be approved.
Petitioner believes that the punishment was unjustly harsh due to the
fact that the time between his first and second DUI was over 15 years,
(although, MILPERSMAN 1910-152 states, “Any member who returns to
alcohol abuse at any time during member’s career following treatment”
is deemed to be an alcohol rehabilitation failure). Additionally,
Petitioner believes that the loss of his retirement over the course of
40 years, at the retirement grade of E-7, until the age of 75, would
be approximately $1,000,000.00, and is disproportionate to his
offense.
CONCLUSION:
Upon review and consideration of all the evidence cf record, the Board
concludes that Petitioner’s request warrants favorable action. The
Board finds that he had over 18 years of exemplary service. The Board
also relies on the fact that his ADB found misconduct, but recommended
that he be retained on active duty. Finally, the Board notes that he
was not convicted of the marijuana possession charge. The Board
believes there was sufficient compelling evidence to establish that
Petitioner should have been allowed to finish his enlistment and
retire after 20 years of military service.
In view of the above, the Board recommends the following corrective
action:
RECOMMENDATION :
a. That Petitioner’s naval record be corrected show that he
retired after 20 years of active duty service on 1 August 2006, with
all rights and benefits of a retiree.
b. That any material or entries relating to the Board’s
recommendation be corrected, removed or completely expunged from
Petitioner’s record and that no such entries be added to the record in
the future.
¢. 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. 4ZSALMAN BRIAN \e
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your review and
action,
Reviewed and approved:
QasadsrS. Gos
eo
ROBERT T CALI
Assistant General Counsel
(Manpower and Reserve Affairs)
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