DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
_ 2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 2964-09
12 February 2010
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
@nel: (1) DD Form 149 with attachments
(2) Case summary
{3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, 4
former member of the Marine Corps, filed enclosure (1) with this
Board requesting that he be issued a Certificate of Discharge or
Release from Active Duty (DD Form 214) with a general
characterization of service.
2. The Board consisting of Ness aman: SN: anc
reviewed Petitioner's allegations of error and injustice on 27
January 2010 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 ail
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Although it appears that enclosure (1) 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. Petitioner enlisted in the Marine Corps on 7 April 1966 at
the age of 18. During the period from 143 October 1967 to 14
October 1968 he was the subject of nonjudicial punishment on two
occasions for failure to obey a lawful order, two specifications
of disobedience, and a 21 day period of unauthorized absence
(UA). He was also convicted by summary court-martial of a 27 day
period of UA. On 29 May 1969 he was convicted by special court -
martial (SPCM) for a 79 day period of UA and as a result he was
sentenced to a bad conduct discharge. However, the sentence was
subsequently overturned by the convening authority. On 10 July
1969 his counsel submitted an addendum in which it was noted that
based on the overall record of average proficiency and conduct
marks of 4.1 and 2.9, respectively, and his awards, to include
the Purple Heart Medal, he should have been retained in the
Marine Corps so that he could earn an honorable characterization
of service. On 22 July 1969 he began another period of UA. The
record does not reflect that he returned to military custody and
on 23 August 1969 he was declared a deserter. For record
purposes, this action served as the termination of his period of
UA and enlistment.
d. A DD Form 214 was never issued for his period of service.
On 27 March 2008 the Marine Corps noted that Petitioner had not
been notified or that there were no records of attempts to notify
him of discharge or the characterization of his service. At that
time it was also noted that his average proficiency and conducts
marks were 4.1 and 2.9, respectively, and would be sufficient for
a general under honorable conditions characterization of service.
e. On 23 April 2008, in an advisory opinion from the Marine
Corps, it was recommended that due to the conflicting information
in the record, that Petitioner's characterization of service and
date of discharge be determined by the Board.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action. The Board's decision is based on his overall record
which includes his proficiency and conduct averages, award of the
Purple Heart Medal, four disciplinary incidents for failure to
obey orders, disobedience, and three lengthy periods of UA
totalling approximately 127 days. The Board also notes that his
last period of UA was terminated for record purposes only because
there was no record of his return to military custody.
Based on the foregoing, and considering the fact that Petitioner
suffered the consequences of not having a DD Form 214 for more
than 40 years, the Board concludes that no useful purpose is
served by continuing to not characterize his service. As such,
the Board concludes that he should be issued a DD Form 214 with
the characterization of general under honorable conditions.
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 a DD Form 214 and a general discharge on 23 August
1999.
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 23 March 2009.
4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c)) 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“ GEORG
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.
\pQon§
W. DEAN PFEIF
Executive Dir
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