DEPARTMENT OF THE NAVY -

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100 .

 

TIR
Docket No: 10728-08

10 July 2009

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

 

REVIEW NAVAL RECORD or ee

   
 

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Subj :_

       

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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 enlisted member of the Navy, filed an application with
this Board requesting that his RE-4 reenlistment code be changed.

majority 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
reguiations within the Department of the Navy.

b. Petitioner's application was filed in a timely manner.

years at the age of 19. At this time he also extended his
enlistment for 12 months and began a period of active duty on 27

April 1999.

d. Although the record ig incomplete, it appears, as
evidenced by entries on his awards page (NAVPERS 1070/604 (Page
4)) that Petitioner was not awarded a Good Conduct Medal, which
could be due to low performance evaluation marks or unrecorded
minor disciplinary infractions. However, during his enlistment
he was awarded three Sea Service Deployment Ribbons, three
Overseas Service Ribbons, an Armed Forces Expeditionary Medal, a
Meritorious Unit Commendation, and a National Defense Service
Medal.

e. Petitioner’s Certificate of Release or Discharge from
Active Duty (DD Form 214) reflects that on 16 June 2002 he was
promoted to aviation ordnanceman third class (AO3/paygrade E-4).
His DD Form 214 further reflects that in September 2003 he
completed and passed the examination for aviation ordnanceman
second class (A02/paygrade E-5).

f. On 26 April 2004 Petitioner was honorably released from

active duty and transferred to the Navy Reserve upon completion
of his required active service. At that time he was assigned an

RE-4 reenlistment code. Petitioner acknowledged the information
contained on and initialed the DD Form 214 that was issued to him
upon separation. His record does not include a page 13 entry
explaining why he was not recommended for reenlistment.

g. On 30 March 2007 Petitioner was honorably discharged at
the expiration of his enlistment. If issued a Record of
Discharge from the U.S. Naval Reserve (Inactive}, NAVPERS
1070/615, it would reflect that he was not recommended for
reenlistment in accordance with the RE-4 reenlistment code
assigned on 26 April 2004.

h. In his application, Petitioner asserts that not only did
he honorably serve in the Navy without disciplinary infraction or
lost time, but he also received a Good Conduct Medal and was
“asked” to reenlist, but chose not to do so. He further asserts
that although his copies of his performance evaluations were
destroyed or sold, they were satisfactory.

MAJORITY CONCLUSION:

Upon review and consideration of the evidence of record, although
incomplete, a majority of the Board, consisting of Messrs. Dunn
and Pfeiffer, concludes that Petitioner's request warrants
favorable action.

Although the record is incomplete, the majority's recommendation
is based on Petitioner's otherwise satisfactory conduct, which
resulted in an honorable characterization of service at the time
of his release from active duty. In reaching its decision the
majority believes that the assignment of an RE-4 reenlistment
code is not supported since Petitioner passed his advancement
examination. Taking all of the foregoing into consideration, the
majority does not believe that Petitioner's record, such as it
is, justifies the assignment of an RE-4 reenlistment code.
Accordingly, the majority concludes that an RE-1 reenlistment
code should now be assigned.

In view of the foregoing, the majority finds the existence of an
injustice warranting the following corrective action.

MAJORITY RECOMMENDATION :

a. That Petitioner's naval record be corrected to show that
he was issued an RE-1 reenlistment code on 26 April 2004 vice the
RE-4 reenlistment code actually issued on that 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 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.

MINORITY CONCLUSION:

Mr. Delorier disagrees with the majority and concludes that
Petitioner's request does not warrant favorable action. In this
regard, the minority member notes Petitioner’s assertions of
serving without disciplinary infraction and receiving a Good
Conduct Medal, but concludes that the record, although
incomplete, appears to be contrary to his assertions.

The minority member is aware of the favorable aspects of
Petitioner's service, however, he believes that even though
Petitioner passed an advancement examination, he was not
recommended for advancement, and by his own words “chose not to
-reenlist” at the lower paygrade. Further, the minority believes
that if Petitioner were recommended for reenlistment when he was
‘released from active duty in April 2004, he would have had
concerns regarding the RE-4 reenlistment code which bars
reenlistment based on the recommendation of his commanding
officer and would not have initialed his DD Form 214.
Although Petitioner’s record is incomplete, i.e., no performance
evaluations are on file, the onus is on him to prove the
existence of probable material error or injustice. In this
regard, he was provided with copies of his performance
evaluations and these evaluations were discussed in detailed with
him. Nonetheless, Petitioner did not or could not provide copies
of the performance evaluations. With that being said, the
minority presumes regularity attaches to all official records,
and since Petitioner has not clearly shown an error or injustice
in the assignment of the RE-4 reenlistment code, the minority
believes that he was informed that he was not recommended for
retention, advancement, or reenlistment at the time of his
release from active duty.

The minority member believes that the RE-4 reenlistment code was
properly assigned and should not be changed based solely on
Petitioner’s assertions.

In view of the foregoing, the minority finds no injustice
warranting corrective action.

MINORITY RECOMMENDATION:
a. That Petitioner's request be denied.
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 Recorder.
5. The foregoing action of the Board is submitted for your review

and action. Re ,

W. DEAN IPWE

MAJORITY REPORT APPROVED: > Ses ‘ < ~ a Slo

Assistant General Counsel
(Manpower and Reserve Affairs)

MINORITY REPORT APPROVED: