DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

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

 

JDR
Docket No: 4545-14
12 May 2015

From: Chairman, Board for Correction of Naval Records
To? Commandant of the Marine Corps (MMRP)

Subj: REVIEW NAVAL RECORD OF Qin Usuc,

10 U.S.C. 1552
JAG ltr JAG 131.1:TDK:cse, Ser 13/5631 of 18JAN79

)

)

) JAG ltr JAG 131.1:TDS:cse, Ser 13/5273 of 25JUL80
) JAG ltr JAG 131.1:TDS:cse, Ser 13/5274 of 25JAN80

Ref:

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 Marine Corps, filed enclosure (1)
with this Board requesting that his record be corrected to show
a characterization of his service rather than a void enlistment,

and that all of his rights be restored.

reviewed Petitioner's allegations of error and
injustice on 24 April 2015, 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.

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.
JDR
Docket No: 4545-14

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 Marine Corps, began a period
of active duty on 17 January 1974, and served without
disciplinary incident for about 13 months.

d. On 4 March 1975, he received nonjudicial punishment
(NUP) for a six day period of unauthorized absence (UA). On
22 December 1975, he was convicted by summary court-martial
(SCM) of 31 days of UA. On 9 January 1976, he received NJP for

a two day period of UA.

e. During the period from 5 to 21 April 1976, Petitioner
was in a UA status for a period of three days and failed to go
to his appointed place of duty on seven occasions. Asa result,
he was referred to trial by court-martial. However, on
21 June 1976, the charge was dismissed on motion due to a lack
of jurisdiction because Petitioner's enlistment was void. The
reason for this action was that his enlistment was fraudulently
procured with the assistance of a recruiter, specifically, he
and the recruiter concealed pre-service civil criminal
activities.

f. Pursuant to the Court of Military Appeals decision in
United States v. Russo, 23 C.M.A. 511, 50 C.M.R. 650, 1 J.J3. 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. As indicated in references
(bo), (c), and (d), the Judge Advocate General (JAG) has opined
that since these individuals were members of the Armed Forces
for all other purposes, they should have been separated in
accordance with Department of Defense directive 1332.14 of
29 September 1976, which provided binding guidance on enlisted
administrative separations. That directive did not allow
administrative separation or release from active duty without
discharge or credit for actual time served. Elsewhere in the
references, JAG discusses the ramifications of backdating
erroneous discharges and the possibility of issuing corrected
discharges under other than honorable conditions. JAG
JDR
Docket No: 4545-14

essentially concludes that 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, JAG states that the discharge must be characterized
as either honorable or general, as is warranted by the
individual’s service record.

g- In accordance with references (b) through (d), the Board
has routinely recommended the substitution of a general
discharge for a void enlistment in cases of this nature, and

such recommendations have been approved.

h. The Uniform Code of Military Justice was changed in 1979
to essentially state in most instances, that individuals who
enlisted in the Armed Forces and accepted pay and allowances are
subject to trial by court-martial, even if recruiter misconduct

occurred during the enlistment process.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that relief in the form of recharacterization of

his service is warranted.

The Board's decision is based upon the circumstances of the case
and particularly the advisory opinions of the JAG as outlined in
references (b) through (d). In view of Petitioner’s
disciplinary record and periods of UA, the Board concludes that
a general discharge by reason of misconduct is the type
warranted by the service record.

In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that
on 31 August 1976, he was issued a “general” discharge by reason
of misconduct.

b. That a copy of this report of proceedings be filed in
Petitioner’s naval record.
JDR
Docket No: 4545-14

c. That, upon request, the Department of Veterans Affairs
be informed that Petitioner's application was received by the
Board on 5 March 2014.

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.

T. J. REED
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.

ROBERT J. O'NEILL
Executive director