DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

SMS
Docket No: 12014-08
31 March 2009

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

Sub}: REVIEW OF NAVAL RECORD OF

fe BS

 

 

Ref: (a) 10 U.S.C. 1552

Encl: (1) Case Summary with memorandum
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a former
member of the Marine Corps, applied to this Board requesting an
honorable discharge and an RE-1 reenlistment code vice the other than
honorable (OTH) discharge and RE-4 reenlistment code that was issued
on 7 July 1983.

2. The Board, consisting of Ms . -iieageamietrace- Mr . «aig, and

Mr "Mg, reviewed Petitioner's allegations of error and
injustice on 25 March 2009, and pursuant to its regulations,
determined that the limited 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,
applicable statutes, regulations and policies, and a memorandum
provided by Headquarters Marine Corps (HQMC), a copy of which is
attached.

   

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 November 1980, Petitioner enlisted in the Marine Corps at
age 18. At that time, he had completed 12 years of education, but
attained below average scores on entrance tests. On 3 March 1981, he
was dropped from a formal military occupational specialty school due
to academic reasons and subsequently began serving as a rifleman with
an infantry unit. On 28 August 1981, he had nonjudicial punishment
(NOP) for a three hour period of unauthorized absence (UA). He was
subsequently counseled for returning late from leave and warned that
further infractions could result in disciplinary action. During the
period 24 March 1982 to 21 February 1983, he had NJP on three
occasions and a suspended punishment was vacated. His offenses
included failure to go at the time prescribed to a dental
appointment, three instances of violation of a lawful general order
by not wearing his rank insignia on his utility uniform and field
jacket, and breaking restriction. On 21 February 1983, he was
counseled regarding his misconduct and warned that further
infractions could result in disciplinary action or administrative
separation. On 5 April 1983, he had NUP for two instances of
dereliction in the performance of his duties due to the loss of a
radio while he was assigned duties as a gear guard and his failure to
report the missing gear. On 12 May 1983, he had NUP for operating a
car while intoxicated.

d. On 25 May 1983, Petitioner’s commanding officer initiated
administrative separation by reason of misconduct due to minor
disciplinary infractions. 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 5 July 1983, the separation authority
approved the recommendation and directed an OTH discharge by reason
of misconduct due to minor disciplinary infractions. On 7 July 1983,
he was so discharged. At that time, his proficiency and conduct mark
averages were 3.4 and 4.0, respectively.

e. Petitioner states in essence that the disciplinary actions in
his record are unfounded and it is his personal belief that he was
accused of offenses without any evidence.

£. Regulations authorize issuance of an OTH discharge for members
separated by reason of misconduct. Regulations also authorize a
general discharge in such cases. Furthermore, regulations authorize
assignment of an RE-4 reenlistment code when a member is not
recommended for retention.

g. Attached to enclosure (1) is a memorandum from the
Headquarters Marine Corps (HQMC) Performance Evaluation Review
Branch, Manpower Management Division dated 11 December 2008, which
states, in part, as follows:

... [Petitioner's] service record has been reviewed and
it has been determined that at the time of separation
he was assigned a reenlistment code of RE-4, which
means that he is not recommended for reenlistment.

... [Petitioner] was honorably [sic] discharged
Under [OTH] Conditions by reason of misconduct...
The disciplinary portion of his record shows that
[Petitioner] had no less than six [NJP's]...

_.. After review of all relevant information, this
Headquarters concurs in the professional

2
evaluation of [Petitioner's] qualifications for
reenlistment at the time of separation...

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial relief.
Specifically, the Board agrees with the memorandum provided by HQMC
regarding assignment of an RE-4 reenlistment code and 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, with the exception of his last offense, the rest of his
misconduct was relatively minor and was not flagrant violations of
the law or regulations. In this regard, the Board noted that there
is no evidence in the record of disrespect or lengthy UA's. The
Board also considers his youth, below average scores on entrance
tests, and satisfactory proficiency and conduct mark averages.
Therefore, given his misconduct, the Board concludes that as a matter
of clemency, he should be granted partial relief and as such his
discharge should be changed to general.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he
was separated with a general discharge on 7 July 1983, 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
11 December 2008.

dad. That Petitioner's request to change his RE-4 reenlistment code
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 J. Sao} “ong
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 .