DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SIN
Docket No: 00935-12
3 December 2012
From: Chairman, Board for Correction of Naval Records
TS : Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
(b) JAG ltr JAG 131.1:TDK:cse, Ser 13/5631 of 18 Jan 79
(@) JAG. ltr JAG 1317.1:TDS:ese6, Ser 1375273 of 25. Jul 80
(ad) JAG ltr JAG 131.1:TDS:cse, Ser 13/5274 of 25 Jul 80
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
void enlistment of 14 December 1977 be changed to honorable and
that he be given credit for time served.
2. The Board, consisting of Messrs. Zsalman and Storz and
Ms. Countryman, reviewed Petitioner's allegations of error and
injustice on 29 November 2012 and, pursuant to its regulations,
determined that the limited 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 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 Navy and began a period of
active duty on 17 January 1977 at the age of 17. During the
period from 24 March to 17 May 1977, he received three
nonjudicial punishment’s (NJP’s) for assault, disobedience,
leaving his post while on guard duty, and three instances of
being absent from his appointed place of duty. On 22 September
1977, he was notified that he was being considered for an
administrative separation by reason of defective enlistment due
to a void enlistment. In this regard, Petitioner waived his
right to consult with legal counsel and did not object to the
separation. The reason for this action was that his enlistment
was fraudulently procured with the assistance of a recruiter,
specifically, he was enlisted while he was under the age of 18
and also forged his parental consent documentation. On 14
December 1977, he was issued a void enlistment due to being
enlisted in error.
d. Pursuant to the Court of Military Appeals decision in
United States v. Russo, 23 C.M.A. 511, 50 C.M.R. 650, 1M.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.
e. As indicated in references (b), (c), and (d), the Judge
Advocate General (JAG) has opined 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, the discharge must be characterized as
either honorable or general, as is warranted by Petitioner’s
service record. In accordance with the references, the Board has
routinely recommended corrective action for a void enlistment in
cases of this nature, and such recommendations have been
approved.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the JAG opinions, the Board concludes that
Petitioner's request warrants favorable relief.
The Board finds the existence of an injustice warranting partial
corrective action. The Board concludes that based on
Petitioner's record of military service, to include three NJP’s
for serious offenses, the record should reflect a general
characterization of service. In view of the foregoing, the Board
recommends the following limited corrective action:
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he began a period of active duty on 17 January 1977 and received
a general discharge on 14 December 1977 vice the void enlistment
actually issued on that date. Additionally, it is directed that
he be issued a new Certificate of Release or Discharge from
Active Duty (DD Form 214).
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.
om 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.
d. That upon request, the Department of Veterans Affairs be
informed that Petitioner’s application was received on
23 January 2012.
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.
BRIAN J GEORGE
Head, Discharge Section
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