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DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 3822-11
5 May 2011
From: Chairman, Board for Correction of Naval Records
TGs Secretary of the Navy
16 U.S.C. 1552
JAG ltr JAG 131.1:TDK:cse, Ser 13/5631 of 18Jan79
JAG itr JAG 131.1:TDS:¢cse, Ser 13/5273 of 2570180
JAG ltr JAG 131.1:TDS:cse, Ser 13/5274 of 2570180
Ref:
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Enel: (1) DD Form 149 with attachments
Case summary
(3) Subject's naval record
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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. Bourgeois, Mr. Gattis and Ms.
Trucco, reviewed Petitioner's allegations of error and injustice
on 27 April 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. 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 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 12 April 1976
at age 17 for four years. At the time of enlistment, he had not
completed 10 years of formal education.
d. Petitioner alleged that he told his recruiter that he had
only completed the ninth grade of school and that his recruiter
told him not to worry about it. His recruiter told him his name
was Kim Hudson Kloe, which was incorrect; and that when he went
to take the Armed Services Vocational Aptitude Battery (ASVAB)
test, his recruiter told him he had already taken it. It is
evident, when comparing the signature on the ASVAB worksheet and
the signature of Petitioner on other documents, they differ
substantially.
e. On 15 March 1978, Petitioner was separated with a void
enlistment and assigned an RE-4 reenlistment dode.
f. Pursuant to the Court of Military Appeals decision in
United States v. Russo, 23 C.M.A. S11, 50 C.M.R. 650, 1 Jd. 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.
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 with
no disciplinary infractions and conduct score of 4.1, the Board
concludes that an honorable discharge 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 an honorable discharge on 15 March 1978 vice the
separation by reason of a void enlistment actually issued on that
day.
b. That no further relief be granted.
c. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
d. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 29 March 2011.
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.
Bron) oop
ROBERT D. ZSALMAN BRIAN J.Y 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 STE F
Executive Dilyec
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