DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

BUG
Docket No: 8411-11
19 September 2012

From: Chairman, Board for Correction of Naval Records (BCNR)
TO: Secretary of the Navy

REVIEW OF NAVAL RECOR ECONS IDERATION)

Ref: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 dtd 25 Aug 10 w/attachments
(2) BCNR dec document (doc no: 9699-10) dtd 8 Jun 11
(3) Subject’s req for recon ltr dtd 27 Jun 11
(4) BCNR recon deny ltr (doc no: 7404-11) dtd 14 Jul 11
(5) Subject’s req for recon ltr dtd 24 Jul 11

w/attachments

(6) FBI record check req dtd 8 Aug 11 w/attachment
(7) Subject’s ltr dtd 3 Mar 12 w/attachment
(8) HOMC JAM memo dtd 23 Jul 12 w/attachments
(9) Subject’s ltr dtd 22 Aug 12
(10) Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject,

hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by showing that on 18
July 1986, he was issued an honorable characterization of
service vice the other than honorable (OTH) discharge of record.
By implication, he further requested that his reason and
authority for discharge be changed from “Misconduct - Commission
of a Serious Offense (COSO)” to “Secretarial Authority”, and
that his reenlistment code be changed from “RE-4”" (Not
Recommended for Retention) to “RE-1” (Recommended for
Retention). His original request was denied by this Board on 7
June 2011 (enclosure (2)).

2. The Board, consisting of Messrs. Blanchard and Bourgeois and
Ms. Siler, reconsidered Petitioner’s allegations of error and
injustice on 15 May 2012. These three members voted for relief,

but decided that an advisory opinion should be obtained from the
Headquarters Marine Corps (HQMC) Military Justice Branch, Judge
Advocate Division (JAM) before a final decision would be made.
A new Board, consisting of Ms. Guill and Messrs. Marquez and
McBride, again reconsidered his allegations of error and
injustice on 18 September 2012 after the HQMC JAM advisory
opinion was obtained. Pursuant to its regulations, this panel
also voted for relief and 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 which were 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 and entered
active duty on 20 July 1983. He was not the subject of any
disciplinary action, and his proficiency/conduct mark averages
were 4.2/4.2, respectively (high enough for a fully honorable
characterization of service). However, on 3 November 1984, he
was arrested by civil authorities and charged with conspiracy to
commit murder. He was then notified that his commanding officer
was recommending him for administrative separation with an OTH
characterization of service due to misconduct (COSO). He waived
his right to an administrative discharge board (ADB). On 18
July 1986, he was issued an OTH characterization of service due
to misconduct (COSO), and assigned an RE-4 reenlistment code.

On 14 October 1988, he was found not guilty of conspiracy to
commit murder by a superior court in California.

d. On 25 August 2010, Petitioner applied to this Board for
an upgrade of his OTH discharge (enclosure (1)). He enclosed a
copy of a Department of Veterans Affairs determination that for
its purposes, his service was determined to have been honorable.

e. On 7 June 2011, this Board reviewed Petitioner's
application and denied relief (enclosure (2)).

f. On 27 June 2011, Petitioner requested reconsideration of
his case based on the not guilty finding of the civil court
(enclosure (3)). However, he provided no evidence of the not

guilty finding.
g. By letter dated 14 July 2011 (enclosure (4)), this Board
again denied reconsideration of Petitioner’s case based on his
failure to provide evidence of his not guilty finding.

h. On 24 July 2011, Petitioner provided evidence of his not
guilty finding (enclosure (5)).

i. On 8 August 2011, a member of this Board’s staff
requested a Federal Bureau of Investigation (FBI) criminal
record check on Petitioner (enclosure (6)). The FBI check found
no criminal convictions.

j. By letter dated 3 March 2012 (enclosure (7)), Petitioner
provided more documentation that he has no criminal convictions.

k. The HQMC JAM has provided an advisory opinion dated 23
July 2012 (enclosure (8)), commenting to the effect that
Petitioner’s request has no merit. The advisory noted that he
waived his right to an ADB. It also noted that the burden of
proof for administrative separation is only by a preponderance
of the evidence, not the higher criminal court burden of beyond
a reasonable doubt.

l. By letter dated 22 August 2012 (enclosure (9)),
Petitioner rebutted the advisory opinion. He stated that he was
not able to prepare for an ADB and a civil trial simultaneously.
He concluded that he was denied his right to due process because
he was unable to present evidence of his innocence because it
occurred after his separation.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (8), the Board finds an error and
injustice warranting approval of Petitioner's request. The
Board notes that he waived his procedural right to an ADB, but
that his acquittal occurred more than two years after his
separation. The Board concludes that his administrative
separation based on the conspiracy to commit murder charge for
which he was ultimately found not guilty was in error and
unjust. The Board also notes that he was not the subject of
disciplinary action and his proficiency/conduct marks averages
were high enough for an honorable characterization of service.
The Board concludes that his OTH characterization of service
should be upgraded to honorable, his reason from separation
should be changed from “Misconduct - COSO” to “Secretarial
Authority”, and his reenlistment code should be changed from RE-
4 to RE-1. In view of the above, the Board directs the
following corrective action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that
on 18 July 1986, he was issued an honorable characterization of
service vice the OTH discharge of record.

b. That Petitioner's record be further corrected to show
that he was discharged by reason of “Secretarial Authority” vice
“Misconduct (COSO)” now of record.

c. That Petitioner’s record be further corrected by
changing his reenlistment code of RE-4 to RE-1.

d. 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 be added to the record in the future.

e. 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 ina
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner’s naval record.

f. That the Department of Veterans Affairs be advised that
he originally applied to this Board on 25 August 2010.

4. 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. The foregoing report of the Board is submitted for your

review and action.
W. Ne oie

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Reviewed and approved: iG

ROBERT L. WOODS

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000

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