DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
RDZ:ech
Docket No. 06776-10
8 July 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
(
iP
Subj: REVIEW OF NAVAL RECORD OF FORM
Ref: (a) 10 U.S.C. 1552
Encl: (1) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, initially
applied to this Board requesting that the other than honorable
discharge (OTH) issued to him on 13 March 1998 be upgraded. On 8
June 2010 his request was denied. Petitioner now requests that his
record be corrected to show that he honorably completed his first
enlistment so that he gain veterans preference status under the laws
administered by the State of California. Petitioner is presently
employed by the California Department of Water and Power.
2. The Board, consisting of Messrs George, Pfeiffer and Storz,
reviewed Petitioner's allegations of error and injustice on 25 June
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. Petitioner's application to the Board was filed in a timely
manner.
c. Petitioner first enlisted in the Navy on 26 July 1994 fora
term of three years. Under the terms of his enlistment contract
Petitioner’s enlistment would have expired on 25 July 1997.
d. On 6 July 1997 Petitioner was issued an honorable discharge,
some 19 days before the expiration of his enlistment. This was done
to allow him to execute an early two year reenlistment contract which
he did on the day immediately following his discharge. Since
Petitioner’s honorable discharge was conditionally issued for the
purpose of immediate reenlistment it is not deemed to be a complete
and unconditional break in service. As such a DD Form 214 was not
issued.
e. Areviewof Petitioner's service record shows that from 26 July
1994 to his conditional discharge on 6 July 1997 he had no
disciplinary infractions with military or civil authorities.
Moreover on at least three occasions he was individually cited for
superior performance of his military duties which resulted in his
being promoted to damage controlman third class (DC3).
f. Unfortunately Petitioner’s excellent record of service began
to deteriorate a little over four months after his reenlistment with
the onset of a series disciplinary actions that resulted in the
issuance of an OTH on 13 March 1998. Petitioner was also issued a
DD Form 214 showing that the entire period of his military service,
beginning on 26 July 1994 and ending on 13 March 1998, was deemed
to be under other than honorable conditions. In effect Petitioner
receives no credit for a substantial period of good service that
extended beyond the expiration of his first three year enlistment.
It should also be noted that Petitioner’s misconduct occurred over
a period of less than 60 days out of total service time of over three
years and seven months.
g. Insimilar past cases the Board has granted relief when it found
that the interests of justice would be better served by taking
remedial action.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board
concludes that Petitioner’s request warrants favorable action. It
is clear beyond any doubt that had Petitioner not executed an early
reenlistment on 7 July 1997 he would have received an honorable
discharge when his original enlistment expired on 25 July 1997.
Throughout this period Petitioner's service was consistently
excellent or higher. Additionally, although Petitioner's
misconduct warranted the issuance of an OTH it is significant to note
that the underlying misconduct occurred over a relatively short
period of time. Accordingly and in conformity with its past actions
jn similar cases the Board believes that Petitioner's record should
be corrected by cancelling his discharge of 6 July 1997 and showing
that he was honorably discharged on 25 July 1997 due to completion
of his three year enlistment. ADD Form 214 should be issued setting
forth this data as well as Petitioner's rate of DC3 anda reenlistment
code of RE-1. Petitioner’s record should be further corrected to
show that he reenlisted on 26 July 1997 and served until he was
separated with an OTH on 13 March 1998 due to misconduct. An amended
DD Form 214 should be issued setting forth this data and showing that
when Petitioner was discharged with an OTH on 13 March 1998 he was
serving in the rate of DCFN and received an RE-4 reenlistment code.
The Board further concludes that this Report of Proceedings should
be filed in Petitioner’s naval record so that all future reviewers
will understand the reasons for the Board’s action.
RECOMMENDATION:
a. That Petitioner's discharge of 6 July 1997 be set aside and that
his record be corrected to show that he was issued an honorable
discharge on 25 July 1997 due to completion of obligated service.
A DD Form 214 should be issued showing this information as well as
Petitioner's rate as being DC3 with a reenlistment code of RE-1.
b. That Petitioner’s record be further corrected to show that he
reenlisted on 26 July 1997 and served until 13 March 1998 when he
was separated with an other than discharge in the rate of DCFN and
an RE-4 reenlistment code.
c. That a copy of this Report of Proceedings be filed in Petitioner's
record.
A. 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 Regulations, 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.
LaQor ;
W. DEAN PFET
Executive D
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