DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 0151909
14 April 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub}: REVIEW OF NAVAL OF RECORRRH
wre:
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) HOMC memo 1040 MMER/RE of 6 Feb 09
(3) HOMC memo 1040 MMEA of 29 Jan 09
(4) United States Department of Justice, Federal Bureau
of Investigation report dtd 26 Mar 09
(5) Office of Sheriff, Beaufort County, South Carolina
dtd 30 Mar 09
(6) Subject's naval ‘record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting that his'reenlistment code (RE-4) be
changed.
2. The Board, consisting of Messrs. 4 Siiiiaam >< 4000p
reviewed Petitioner's allegations of error and injustice on
26 March 2009. Pursuant to its regulations, the Board 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 enclosure (1) was not filed in a timely manner,
it is in the interest of justice to review the application on its
merits.
Docket No. 01519-09
c. Petitioner enlisted in the Marine Corps on 17 February
1990. During Petitioner's period of service he received two
nonjudicial punishments (NJP’s), one in October 1990, for
consuming alcohol under the age of twenty-one and failure to obey
a lawful order, and another one in June 1994, for failure to obey
‘a lawful order. In addition, he was counseled in March 1994, for
driving while intoxicated.
d. On 9 November 2001, there was a domestic dispute between
Petitioner and his girlfriend at their apartment in Beaufort,
South Carolina. Petitioner stated that during the argument, he
had pushed her, causing her to hit her head on a table. However,
she was still coherent and went to bed later that evening. The
next morning, Petitioner left for work. Later that day, when he
came home for lunch, Petitioner stated that his girlfriend was
lying on the floor and was dead. At this time, Petitioner was
initially charged with murder, but after an autopsy and
toxicology report stated the cause of death was an overdose due
to alcohol and sleeping medication, the charges were then reduced
to criminal domestic violence in October 2002. While the charges
were pending in civil court, in December 2003, Petitioner’s
command allowed him to reenlist, but stated that he needed to
seek final resolution of his pending civil charges. However, in
the four years that followed his reenlistment, Petitioner failed
to seek final legal action in his case. At the end of his
obligated service on 12 February 2008, Petitioner had 17 years
and 11 months of active duty service. At this time, his command
did not recommend him for retention because he failed to
demonstrate the high standards of leadership, professional
competence, and personal behavior required to maintain the
prestige and quality standards of the Marine Corps, by failing to
resolve his civil charges in a timely manner. However, his
command did provide him a 30 day extension to allow him to put
his legal affairs in order. He failed to do so. As a result,
Petitioner was separated with an honorable discharge and an RE-4
reenlistment code.
e. In Petitioner's application, he notes that his RE-4 code
was unjust due to his past good conduct medals and the fact that
he was allowed to reenlist after he was charged with criminal
domestic violence in October 2002.
CONCLUSION :
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner is entitled to the relief
requested. The Board finds that although he committed
misconduct, the main issue was his civil charge that eventually
resulted in a non-conviction and the civil authorities did not
Docket No. 01519-09
prosecute the charge. In 2008, when Petitioner was being
considered for separation, the commanding officer took into
account all of his military service, including his legal
situation and his past misconduct. However, the Board finds that
in light of Petitioner’s exemplary military career for over 17
years and 11 months, separating the member from military service,
just short of the 18 year “sanctuary” was unjust. Furthermore,
the Board believes that the fact that the case not being resolved
in a timely manner did not solely rest with the Petitioner, but
the district attorney as well, who failed to prosecute the case.
Based on the foregoing, and considering the fact that Petitioner
has since resolved the civilian criminal issue, that resulted in
a non conviction, the Board believes that Petitioner’s
reenlistment code should be changed from an RE-4 code to an RE-1.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he was issued an RE-1 reenlistment code on 12 February 2008, at
the completion of his obligated service.
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.
. Asn) Doge
ROBERT D. ZSALMAN BRIAN J.“ GEORGE
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your review
and action.
Reviewed and approved:
rr ;
QadT. a0
W-ant- Oo |
Robert T. Cali
Assistant General Counsel
Manpower and Reserve Affairs) 3
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