DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 4746-09
14 April 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF |
NOES
Ref: (a) 20 U.8.€; 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former member of the Navy, filed enclosure (1) with this Board in
which he requested that his record be corrected to show a
characterization of service rather than a void enlistment, and
that all his rights be restored.
2. The Board, consisting of Messrs RN, CCE, =
VW Sv oeves Petitioner's allegations of error an eo eice
on pril 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 all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Although it appears that enclosure (1) was not filed ina
timely manner, it is in the interest of justice to waive the
Statute of limitations and review the application on its merits.
¢. Prior to Petitioner's enlistment, specifically, on 23 June
1973, he was convicted by civil authorities of two counts of
possession of lysergic acid diethylamide (LSD). Subsequently, on
1 March 1974, he was sentenced to probation for three years.
da. Petitioner enlisted in the Navy on 2 December 1975 at the
age of 19 and immediately began a period of active duty. At the
time of his enlistment, he had informed military authorities of
the foregoing civil conviction, as well as all pre-service civil
involvement. He also provided authorities with the complete and
proper information regarding his probation. As a result, an
investigation was initiated for possible fraudulent enlistment.
On 4 February 1976, the investigation had been completed and it
was determined that he had not been formally released from
probation. In this regard, his probation officer stated, in
part, that Petitioner had mentioned his desire to enlist, but the
formal paperwork for his release from probation had not been
initiated.
e. Petitioner continued to serve without disciplinary
incident until 13 May 1976, when he received nonjudicial
punishment for a two day period of unauthorized absence.
f. On 2 June 1976 Petitioner’s commanding officer recommended
his enlistment be voided by reason of erroneous enlistment based
on the status of his conditional probation. Shortly thereafter,
on 21 June 1976, he was formally released from probation.
However, on 13 July 1976, the discharge authority directed the
commanding officer to separate Petitioner with a “void
enlistment” because it was void at inception due to him being on
probation. As a result of this action, on 21 July 1976, after
serving for seven months and 19 days, Petitioner's enlistment was
voided and he was released from naval jurisdiction.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
The Board is aware of Petitioner’s NJP and does not condone his
misconduct. However, the Board’s decision is based on his
overall record of satisfactory service and the fact that he did
not conceal his pre-service civil conviction, and that he was
unaware that he had not been “formally” and properly released
from his probation. As such, the Board concludes that his void
enlistment by reason of release from naval jurisdiction appears
to be exceptionally harsh and his naval service should be
characterized. In this regard, the Board concludes that because
of his minor in-service misconduct and short term of service, a
discharge under honorable conditions is more appropriate, less
stigmatizing, and now warranted.
Based on the foregoing, the Board concludes that no useful
purpose is served by continuing to show that Petitioner’s
enlistment was void, and that his record should be corrected to
reflect that he received a general discharge by reason of
convenience of the government due to being enlisted and/or
inducted in error. 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
on 21 July 1976 he was issued a general discharge by reason of
convenience of the government due to being enlisted/inducted in
error (discharge authority: 3850220; separation code: JFC) vice
being released from naval jurisdiction.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
ec. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 1 May 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.
cuss. \ Russigh
ROBERT D. ZSALMAN BRIAN J. GEORGE
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.
\pQend
W. DEAN PFEIF
Executive Dire
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