DEPARTMENT OF THE NAVY
BOARD EOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 7160-08
26 March 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
member of the Navy, applied to this Board requesting a general
discharge vice the other than honorable (OTH) discharge that was
issued on 7 May 1990.
2. The Board, consisting of Mr. et, «Mr ee. and
Ms. ee ad reviewed Petitioner's allegations of error and
injustice on 24 March 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 Petitioner's application was not filed in a timely
manner, it is in the interest of justice to waive the statute of
limitations and review the application on its merits.
c. On 4 May 1988, Petitioner enlisted in the Navy at age 18. At
that time, he had completed eight years of education and attained
average scores on entrance tests. His accession urinalysis tested
positive for marijuana, but he was authorized retention, counseled
regarding his misconduct, and warned that further infractions could
result in administrative separation.
d. On 16 October 1989, Petitioner had nonjudicial punishment (NJP)
for drunk and disorderly conduct. He was subsequently given another
discharge warning and advised that substance abuse treatment was
available. During the period 14 November 41989 to 9 March 1990, he
had NUP on four occasions. His offenses included two instances of
failure to go to his appointed place of duty, two instances of
dereliction in the performance of his duties, two instances of
absence from his appointed place of duty, disrespect, and two
instances of disobedience of a lawful order. During this period, he
received medical treatment on several occasions after falling down
stairs and it appeared that he had been drinking.
e. On 28 March 1990, Petitioner's commanding officer jnitiated
administrative separation by reason of misconduct due to a pattern of
misconduct and commission of a serious offense. In connection with
this processing, he acknowledged that separation could result in an
OTH discharge and waived the right to have his case heard by an
administrative discharge board (ADB). On 11 April 1990, the
separation authority approved the recommendation and directed an OTH
discharge by reason of misconduct due to a pattern of misconduct. On
7 May 1990, he was so discharged.
f. Petitioner requests an upgrade of his discharge to general
because he did not intentionally violate regulations and believes
that he had permission, specifically, on one occasion to seek medical
treatment and on another occasion he was held accountable for a
procedural error that was made by a junior Sailor.
g. Regulations authorize issuance of an OTH discharge for members
separated by reason of misconduct. Regulations also authorize a
general discharge in such cases.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants relief.
Specifically, the Board finds that his discharge was processed in
accordance with regulations, but finds that his overall service did
not warrant an OTH discharge. In this regard, the Board finds that
his disciplinary infractions were relatively minor, as evidenced by
his offenses that included four instances of absence from his
appointed place of duty that did not even total one day.
Furthermore, the Board considers his youth, eight years of education,
and apparent alcohol abuse for which there is no record of him
receiving treatment. Therefore, as a matter of clemency, the Board
concludes that his discharge should be changed to general.
CONCLUSION:
a. That Petitioner's naval record be corrected to show that he
was separated with a general discharge on 7 May 1990, vice the OTH
discharge that was issued on that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner’s naval record.
c. That upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board on
24 July 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.
Gea) Ao
ROBERT D. ZSALMAN BRIAN J. NGEORGE
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.
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