DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100
REC

Docket No: 03698-10
9 February 2011

 

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

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Ref: (a) 10 U.S... S52
(b) JAG ltr JAG 131.1:TDK:cse, Ser 13/5631 of 18Jan79
(c) JAG ltr JAG 131.1:TDS:cse, Ser 13/5273 of 25du180
(d) JAG ltr JAG isl..id<:TDS:ese, Ser 13/5274 of 257Ju180
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
Marine Corps, filed enclosure (1) with this Board
requesting, in effect, that his record be corrected to show
a characterization of his service rather than a void
enlistment. He received the void enlistment on 21 March
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2. The Board, consisting of Mr. Geberth, Mr. Hotopp, and
Mr. Sproul, reviewed Petitioner's allegations of error and
injustice on 9 February 2011 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. 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.

b. Petitioner enlisted in the Marine Corps on 5 March
1976, and began a period of active duty on 28 May 1976.

c. On 9 November 1976, he received nonjudicial
punishment (NJP) for being in an unauthorized absence (UA)
status for three days. On 29 November 1976, he commenced a
period of UA which lasted 43 days. He had one additional
period of UA which lasted one day. On 25 February 1977,
his commanding officer requested to void his enlistment on
the gréunds that it was discovered that prior to his
enlistment he pled guilty to second degree burglary.
However, on 12 March 1976, he was sentenced to one year
probation, 10 days in county jail, and restitution. His
recruiter was informed of the situation and negotiated with
his parole officer for an early release of his probation.
Under the assumption that he was released, his recruiter
shipped Petitioner to recruit training. However, on
11 June 1976, the court dismissed his remaining
probationary period and dismissed the charges. On 21 March
1977, Petitioner was discharged with a void enlistment.

His final conduct average was 1.5, which is not sufficient
for an honorable characterization of service.

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
J.d. 134 (C.M.A. 1975) and United States v. 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. As indicated in references (b), (c), and
(a), the Navy Judge Advocate General (JAG) has opined that
since these individuals were members of the armed forces
for all other purposes, they should have been separated in
accordance with Department of Defense directive 1332.14 of
29 September 1976, which provided binding guidance on
enlisted administrative separations. That directive did
not allow administrative separation or release from active
duty without discharge or credit for actual time served.
Elsewhere in the references, JAG discusses the
ramifications of backdating erroneous discharges and the
possibility of issuing corrected discharges under other
than honorable conditions. JAG essentially concludes 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,
JAG states that the discharge must be characterized as
either honorable or general, as is warranted by the
individual's service record.

e. In accordance with references (b) through (d), the
Board has routinely recommended the substitution of a
general discharge for a void enlistment in cases of this
nature, and such recommendations have been approved.

f. The Uniform Code of Military Justice was changed
in 1979 to essentially state in most instances, that
individuals who enlisted in the armed forces and accepted
pay and allowances are subject to trial by court-martial,
even if recruiter misconduct occurred during the enlistment

process.
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 upon the circumstances of the
case and particularly the opinions of the JAG as outlined
in references (b) through (d). In view of Petitioner's
disciplinary record and periods of UA, the Board concludes

that a general discharge by reason of misconduct is the
type warranted by his service record.

In view of the foregoing, the Board finds the existence of
an error and injustice warranting the following corrective

action.

RECOMMENDATION :

 

a. That Petitioner's naval record be corrected to show

that he was issued a general discharge by reason of
misconduct on 21 March 1977, vice being issued a void

enlistment on the same day.

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.

c. 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.

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. 4ZSALMAN 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.
W. DEAN’
By directi