DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SIN
Docket No: 09822-09
19 April 2010
From: Chairman, Board for Correction of Naval Records
Tos Secretary of the Navy
Subj}: REVIEW OF NAVAL RECORD or
10 U.S.C. 1552
Ref: (a)
(b) JAG ltr JAG 131.1:TDK:cse, Ser 13/5631 of 18 Jan 79
(c) JAG ltr JAG 131.1:TDS:cse, Ser 13/5273 of 25 Jul 80
(da)
JAG ltr JAG 131.1:TDS:cse, Ser 13/5274 of 25 Jul 80
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 enlisted member of the United States Navy, filed enclosure
(1) with this Board requesting, in effect, that his void
enlistment of 6 October 1978 be changed.
2. The Board, consisting of aR ere and
ve igre ers ewes Petitioner's allegations of error and
injustice on 13 April 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. policiéé .
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 ina timely manner,
it is in the interest of justice to waive the statue of
limitations and review the application on its merits.
c. Petitioner enlisted in the Navy and began a period of
active duty on 11 October 1977 at the age of 18. His record
reflects that he served for almost one year until 4 October 1978,
when he was informed by the Chief of Naval Personnel that his
enlistment may be void because of irregularities in its
execution. Given the option of being released, he elected to be
separated. Subsequently, he was notified that he was being
considered for an administrative separation by reason of
defective enlistment due to void entry into the naval service.
In this regard, Petitioner waived his right to consult with legal
counsel and did not object to the separation. On 6 October 1978,
Petitioner was issued a void enlistment due to being enlisted in
error.
d. Pursuant to the Court of Military Appeals decision in
United States v. Russo, 23 C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134
(C.M.A. 1975) and United States Vv. Catlow, 23 C.M.A. 142, 48
C.M.R. 758 (1974) it was determined that individuals who
fraudulently enlisted in the service with the complicity of their
recruiters were insulated from trial by court-martial for any
offenses they committed. However, they were members of the armed
forces for all other purposes.
e. As indicated in reference (b), (c), and (d), the Judge
Advocate General (JAG) has opined that a characterized discharge
may be substituted for a void enlistment, but such a discharge
cannot be characterized as being under other than honorable
conditions. In essence, the discharge must be characterized as
either honorable or general, as 1s warranted by the Petitioner’s
service record. In accordance with the references, the Board has
routinely recommended corrective action for a void enlistment in
cases of this nature, and such recommendations have been
approved.
CONCLUSION:
Upon review and consideration of all the evidence of record and
especially in light of JAG opinions, the Board concludes that
Petitioner's request warrants favorable relief. 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 received an honorable discharge on 6 October 1978 vice the
void enlistment actually issued on that date. Additionally, the
issuance of a new Certificate of Release or Discharge from Active
Duty (DD Form 214) and honorable discharge certificate is
directed.
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 or material be added to the record in the future.
Gi. 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.
d. That upon request, the Department of Veterans Affairs be
informed that Petitioner’s application was received on
15 September 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. 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.
Lx,
W. ears
Executive dikec
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