DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

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

 

BUG
Docket No: 3150-14
3 June 2014

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

REVIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 6 Jan 14 w/attachments

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 changing his
general characterization of service issued on 17 September 2010
to honorable, as well as his separation authority (Military
Personnel Manual (MILPERSMAN) 1910-146 (Misconduct)), separation
code of “GKK” (Drug Use), and narrative reason for separation
(Misconduct (Drug Abuse)). He further requested that the
reduction in rank from pay grade E-6 to E-5 be restored and
forfeitures he was sentenced to at his special court-martial
(SPCM) be reimbursed. He also requested retirement in the pay
grade of E-6. Finally, by implication, he requested removal of
all documentation regarding his SPCM conviction and
administrative discharge, including an adverse evaluation report
for 26 May to 17 September 2010.

2. The Board, consisting of Mses. Bianchi and Montgomery and
Mr. Marquez, considered Petitioner’s allegations of error and
injustice on 28 May 2014, and pursuant to its regulations,
recommended corrective action. 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. Petitioner entered active duty in the Navy on 17
February 1991. He served without disciplinary action and was
promoted to the rank of petty officer first class (pay grade E-
3), until 12 March 2010, when he was convicted by SPCM, contrary
to his plea, of the wrongful use of cocaine. He was sentenced
to a reduction in pay grade from E-6 to E-5, forfeiture of
$1,949.00 a month for three months, and 90 days of confinement.
He was then notified that he was being administratively
processed for separation due to misconduct {drug abuse). He
elected to have his case heard by an administrative discharge
board (ADB). The ADB found he committed misconduct (drug
abuse), however, a majority recommended retention. The case was
forwarded to the separation authority, who decided to separate
him with a general characterization of service due to misconduct
(drug abuse). He was so discharged on 17 September 2010,
assigned an RE-4 (not recommended for retention) reentry code,
and given an adverse evaluation report. He had 19 years and six
months of active duty service.

c. On 30 April 2013, the United States Navy-Marine Corps
Court of Criminal Appeals (NMCCCA) set aside and dismissed the
finding of guilt in Petitioner’s SPCM based on a violation of
his Sixth Amendment right to confrentation at the trial level.
All rights, privileges, and property of which he had been
deprived by virtue of the finding of guilt and the sentence will
be restored.

d. Current service limitations require that a Sailor
serving in pay grade E-6 retire with 20 years of service. NBD
is the separation code and RE-2 is the reentry code for
retirement.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
especially in light of the NMCCA set aside and dismissal of the
charge Petitioner was convicted of at his SPCM, the Board finds
an injustice warranting relief. The Board finds that his
characterization of service should be upgraded from general
under honorable conditions to fully honorable, since his
administrative discharge was based solely on his SPCM

conviction. The Board further concludes that his reason for

separation, misconduct, should be changed to retirement, and
that his adverse fitness report based on his administrative
separation should be removed. Moreover, he should be reimbursed

2
for the forfeiture of pay he was sentenced to, and he should be
restored to pay grade E-6. Finally, in light of the fact that
he was administratively separated due to his SPCM conviction, he
should be given credit with pay for the time he needs to retire
in light of the 20 year service limitation for an E-6. 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 17 March 2011, he was issued a type of separation of
retirement, an honorable characterization of service, a
separation authority of MILPERSMAN, a separation code of NDB, an
RE-2 reentry code, and a narrative reason for separation of
“Retirement”. It is directed that his Certificate of Release or
Discharge from Active Duty (DD Form 214) be removed and a new
one be issued,

b. That Petitioner’s record be corrected further by
removing the following fitness report and related material:

Period of Report
Date of Rept Reporting Senior From To

c. That there be inserted in his naval record a memorandum
in place of the removed report, containing appropriate
identifying data concerning the report; that such memorandum
state that the report has been removed by order of the Secretary
of the Navy in accordance with the provisions of Federal law and
may not be made available to selection boards and other
reviewing authorities; and that such boards may not conjecture
or draw any inference as to the nature of the report.

ad. That Petitioner’s $5,847.00 forfeiture of pay from his
SPCM sentence be reimbursed and the conviction documentation be
removed,

e. That Petitioner receive paid, constructive service for
six months of active duty service, to make him eligible for a 20
year retirement in the rank of petty officer first class (pay
grade E-6).

£. 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.
g. That any material to be 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 part of Petitioner's naval record.

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.

Rann

ROBERT D. ZSALMAN BRIAN J. GEORGE
Recorder Acting Recorder

>. 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 Regulations, 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. ZSALMAN
Acting Executive Director