DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100

 

TAL
Docket No: 11463-10
3 August 2011

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

Subj:

 

Ref: fa) 10 u.s.Cc. 1552
(b) JAG ltr JAG 131.1:TDK:cseé, Ser 13/5631 of i18Jan79
-(c) JAG ltr JAG 131.1:TDS:cse, Ser 13/5273 of 257u180
{ad} JAG ltr JAG 131.1:TDS:cse, Ser 13/5274 of 2530180
Enel: (1) DD Form 149 with attachments

1
(2) Case summary
3) Subject's naval record

1. Pursuant to the provisions of reference: (a), Petitioner, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting that his record be corrected to show a
characterization of his service rather than a void enlistment,

and that all of his rights be restored.

2. The Board, consisting of Mr. Clemmons, Mr. Hotopp and Ms.
Barrow, reviewed Petitioner's allegations of error and injustice
on 27 duly 2011 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of vecord. 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 thie 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 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 9 January 1976
at age 18 for four years. on 25 June 1976, he received
nonjudicial punishment for unauthorized absence (UA) from his
unit for a period of 46 days. On 25 July 1976, he was again UA
from his unit until he was arrested by civil authorities in
Seminole, Oklahoma, on charges of possession of marijuana and
having a concealed weapon. He was convicted of the concealed
weapon charge and sentenced to one year probation. He was
returned to military control on 10 March 1977, a period of 226
days of lost time.

dad. Petitioner alleged that he was recruited from Helena State
School for Boys. He was sent there by a juvenile court on
October 31, 1975, for possession of marijuana, hitting a cruck,
having an open bottle of wine,. fighting, missing school and
breaking probation from Whitaker State Children's Home. The
recruiter gave him the answers to the Armed Services Vocational
Aptitude Battery (ASVAB) test to study and he was able to pass
the test.

e. On 18 May 1977, Petitioner was separated with a void
enlistment and assigned an RE-4 reenlistment code.

f. 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.J. 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 (d), 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.

g. 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.

h. 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.

i. Character of service is based in part, on conduct marks
assigned on a periodic pasis. Petitioner's conduct mark average
was 2.6. A 4.0 conduct mark average was required for a fully
honorable discharge.

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 advisory opinions of the JAG as outlined in
references (b) through (d). In view of Petitioner’s record and
conduct score of 2.6, the Board concludes that a general
discharge is the type warranted by his service record.

tn 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 on 18 May 1977 vice the
separation by reason of a void enlistment actually issued on that
day.

b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.

ce. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 21 October 2010.

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.