DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 5S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SIN
Docket No: 01978-13
5 February 2014
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
ey
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, a
former member of the Navy, filed enclosure (1) with this Board
requesting an upgrade-oef his other than honorable (OTH)
characterization of service and removal of his 1 August 1980
nonjudicial punishment (NJP) from his Official Military Personnel
File (OMPF). oo
2. The Board, consisting of Mr. Clemmons, Mr. Dixit, and
Ms. Tollefson, reviewed Petitioner's allegations of error and
injustice on 4 February 2014 and, pursuant to its regulations,
Getermined 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 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 and began a period of
active duty on 28 September 1978. on 14 May and 1 August 1980,
he received nonjudicial punishment {(NJP) for two days of
unauthorized absence (UA) and wrongful possession of marijuana.
On 2 August 1981, as a result of his NUP appeal of his 1 August
1980 NUP, the General Court-Martial Convening Authority (GCMCA)
determined that due to inexcusable delay in the processing of his
appeal he would set aside his 1 August 1980 NUP proceedings and
punishment and all property and privileges Petitioner was
deprived of were restored. On 11 January 1983, he was counseled
after being identified as a wrongful drug user, and warned that
further misconduct could result in administrative discharge
action. On 13 January 1983, he received NUP for disobedience.
On 2 February 1983, he was counseled regarding the wrongful use
of marijuana. On 30 September 1983, he received NJP for failing
to go to his appointed place of duty, disobedience, and assault
consummated by a battery. He received a reduction in paygrade,
restriction, extra duty, and a forfeiture of pay. Subsequently,
administrative discharge action was initiated by reason of
misconduct due to commission of a serious offense. He waived
his rights to consult counsel, submit a statement or have his
case heard by an administrative discharge board (ADB). His case
was forwarded recommending that he be discharged under other than
honorable (OTH) conditions by reason of misconduct. ‘The
discharge authority concurred and directed an OTH discharge by
reason of misconduct due to commission of a serious offense. He
was so discharged on 30 November 1983.
CONCLUSION:
Upon review and consideration of all the evidence. of record, and
especially in light of Commander, Destroyer Squadron THIRTY-FIVE
third endorsement dated 2 July 1981, the Board concludes that
Petitioner's request warrants partial favorable relief and that
all derogatory material associated with his NJP dated 1 August
1980 be removed from his OMPF. With regard to his OTH
characterization of service, the Board carefully weighes all
potentially mitigating factors, such as his youth and record of
service. Nevertheless, the Board concludes these factors were
not sufficient to warrant recharacterization of his discharge.
given his three other NUP’s for serious offenses, and the fact
that he was counseled and warned on two occasions, one of which
was for wrongful drug use, that further misconduct could result
_in administrative discharge action. Finally, the Board notes
that he waived the right to an ADB, his best chance for retention
or a better characterization of service. In view of the above,
the Board directs the following partial favorable relief.
RECOMMENDATION:
a. That all derogatory material associated with Petitioner's.
1 August 1980 NIP be removed from his OMPF. Specifically,
redact line item #9, O1AUG80 entry on Enlisted Performance Record
(NAVPERS 1070/609), remove Court Memorandum (NAVPERS 1070/6077)
dated 80AUGO1, and redacted from USS MARS forwarding message
dated 10 November 1983, paragraph #5 Summary of military
offenses(s) the 01AUG80 NUP entry.
2
b. That any material directed to be removed from
Petitioner’s naval record be returned to this 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,
c. That no further relief be granted.
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 ¢. GEORGE
Recorder Acting Recorder
S. 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. |
ROBERT D. ALMAN
Acting Executive Director
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