DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TUR
Docket No: 7367-12
9 May 2013
From: Chairman, Board for Correction of Naval Records
Toe Secretary of the Navy
Subj: ecuilianneasi RECORD OF 30g
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner,
filed enclosure (1) with this Board requesting that the narrative
reason for separation be changed.
2. The Board, consisting of Ms. Barrow, Mr. Blanchard, and Ms.
Wilcher, reviewed Petitioner's allegations of error and injustice
on 7 May 2013 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. Enclosures (2)
and (3) apply. ,
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 ina
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 at age 17 and began a
period of active duty on 6 July 1946. He served for nearly two
years without disciplinary incident and was advanced to the rate
of AN/(E-3).
d. On 27 April 1948 Petitioner was convicted by eivil
authorities of burglary and sentenced to confinement for 90 days
and probation for five years. Subsequently, he was processed for
separation by reason of misconduct due to civil conviction, and
on 14 August 1948, he was issued an undesirable discharge by
reason of misconduct due to civil conviction.
e. On 7 November 1988 civil authorities set aside the
foregoing conviction and dismissed the charge of burglary. As a
result, his record was expunged of all criminal activity.
f. On 7 August 1991 the Assistant Secretary of the Navy (ASN)
determined that it was unjust to continue to characterize
Petitioner’s service as undesirable because civil authorities set
aside the felony conviction and dismissed the charge of burglary.
As such, ASN directed the recharacterization of Petitioner's
undesirable discharge. In this regard, Petitioner’s record was
changed to reflect that on 14 August 1948 he was honorably
discharged by reason of misconduct due to civil conviction.
g. In Petitioner's application, he states that he would like
the narrative reason for separation changed now that his
character of service has been upgraded and his civil record has
been expunged of all criminal activity. Also, a telephonic
report from the Federal Bureau of Investigation confirms
Petitioner’s good post service conduct.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
The Board is aware of Petitioner’s disciplinary infraction in the
civil community and does not condone his misconduct. However,
the Board concludes that the civil charge for which Petitioner
was convicted has since been dismissed and expunged from his
record. Further, the Board is also aware that ASN, based on the
foregoing actions of the civil authorities, changed the
characterization of Petitioner’s service to honorable. In this
regard, the Board concludes that at the time of this change, it
was presumably an oversight that the narrative reason for
separation was not also changed. With that being said, the Board
concludes that a change of the narrative reason for separation
should now be based on Petitioner’s overall satisfactory post-
service conduct, the expunging of his civil record, and the ASN
decision to change his characterization of service.
Based on the foregoing, the Board concludes that no useful
purpose is served by continuing to have Petitioner’s record
reflect a narrative reason for separation as “misconduct due to
civil conviction” and as such, should be changed to reflect a
nonstigmatizing narrative reason for separation. In this regard,
the Board concludes that it is now more appropriate that the
narrative reason for separation be changed to “best interest of
the service.”
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 honorably discharged by reason of best interest of the
service (Secretarial Plenary Authority) on 19 August 1948 vice by
reason of misconduct due to civil conviction on the same day.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
c. That, upon request, the Veterans Administration be
informed that Petitioner's application was received by the Board
on 28 June 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.
Ny
Ui, Waa
W. DEAN PFE
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