DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SMS
Docket No: 6595-08
8 December 2008

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

 

Sub}: REVIEW OF NAVAL RECORD oF ae

 

Ref: (a) 10 U.S.C. 1552
Encl: (1) Case Summary
1. Pursuant to the provisions of reference (a), Petitioner, a

former enlisted member of the Navy, applied to this Board
requesting to be reinstated in the Navy, change his RE-4
reenlistment code, and an honorable discharge vice the general
discharge that he received on 12 June 2008.

2. The Board, consisting of Mr. jg vir. iia and

Ms ia: reviewed Petitioner's allegations of error and
injustice on 3 December 2008, and pursuant to its regulations,
determined that the partial 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. On 7 July 2005, Petitioner enlisted in the Navy at age
18. On 22 July 2006, he received a performance evaluation in
which his individual trait average (ITA) was 3.67, and
indicated that he must be promoted, and was recommended for
retention. On 27 February 2007, he received another
performance evaluation in which his ITA was 3.0, and he was
recommended for promotion and retention. On 15 May 2007, he
was convicted in civil court of speeding. On 16 October 2007,
he was convicted in civil court of underage possession of
alcohol, public intoxication, and identity theft. His sentence
included a restricted motor vehicle license, three years of
probation, and six months in jail which was suspended on the
condition that he perform 50 hours of community service.

During February 2008, he received another performance
evaluation in which his ITA was 3.67, that stated that he was
ready for promotion to petty officer third class, and that he
was recommended for retention. On 18 March 2008, he was
convicted in civil court of reckless driving. On 4 April 2008,
he appeared in civil court regarding his completion of
community service, which resulted in the court authorizing him
to depart the state. On that same date, his commanding officer
initiated administrative separation by reason of misconduct due
to civil conviction. In connection with this processing,
Petitioner acknowledged that separation could result in a
general discharge and elected to have his case reviewed by the
general court-martial convening authority. On 7 April 2008, he
received a performance evaluation which stated that he was
being transferred to a transient personnel unit for
administrative separation, that he was a valuable asset to the
Navy, and was promotable, but was not recommended for
retention. On 28 May 2008, the separation authority approved
the discharge recommendation and directed a general discharge
by reason of misconduct due to civil conviction. On

12 June 2008, he was so discharged and assigned an RE-4
reenlistment code.

c. In his application, Petitioner states in essence that he
was convicted in civil court in June 2007, given probation and
community service, and was then informed by his command to
handle it and not let it interfere with work. He further
states that he performed the community service as quickly as
possible so that he could deploy with his ship during April
2007. As such, on 4 April 2007, the civil court acknowledged
that he completed 50 hours of community service and authorized
his travel outside of the state. He then returned to the ship,
informed them that he was able to deploy, but was told that the
ship's commanding officer already made the decision to
administratively separate him. He further states that his
chain of command in his parent division was not notified that
he was being processed for discharge and believes that was very
unprofessional. He further states that he has observed many
other Sailors whose conduct was much more severe than his be
retained and concludes that the ship's relief of the commanding
officer and executive officer from their duties on 31 July 2008
further supports his belief that he may have been treated
unfairly.
d. Regulations state that service members may be discharged
by reason of misconduct due to civil conviction, if conviction
of an offense results in fines, community service or six months
or more of confinement without regard to suspension, probation
or early release. Regulations direct the assignment of an RE-4
reenlistment code to service members who are discharged by
reason of misconduct.

CONCLUSION:

Upon review and consideration of all the evidence of record,
the Board concludes that Petitioner's request warrants partial
relief. Specifically, the Board finds that Petitioner's
discharge by reason of misconduct due to civil conviction met
the requirements established by regulations. Nevertheless, the
Board finds that other than his civil conviction for
misdemeanor offenses that resulted in his discharge, he had two
misdemeanor traffic convictions, but no military offenses.
Furthermore, he consistently received favorable performance
evaluations that found him to be a valuable asset to the Navy.
Additionally, the Board finds merit to his contention that his
chain of command directed him to complete the community service
and not let it interfere with work commendable. In this
regard, the record shows that he completed the required
community service in about five months, returned to the ship to
inform them of his status, but was informed that the ship's
commanding officer initiated administrative separation on that
very day. Moreover, the Board believes his civil convictions
were not serious enough to warrant separation. Nevertheless,
he should be held accountable for his misconduct and as such
should not be reinstated on active duty in the Navy.
Accordingly, given his overall service record, the Board
concludes that Petitioner's record should be corrected to show
that he was honorably discharged by reason of Secretarial
authority on 12 June 2008, and assigned an RE-1 reenlistment
code.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that
he was honorably discharged by reason of Secretarial authority
on 12 June 2008, vice the general discharge by reason of
misconduct due to civil conviction actually issued on that
date.

b. That Petitioner's naval record be further corrected to
show that he was assigned an RE-1 reenlistment code on
12 June 2008, vice the RE-4 actually issued on that date.
c. That a copy of this Report of Proceedings be filed in
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. ZSALMAN BRIAN GEORGE
Recorder Acting  pecordes

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.

Louse]

W. DEAN P
Executive Di Rector

Copy to:

The Honorable Sipumaeiiiiigas

a