DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O-5~QO

					SJN
										Docket No: 11249-06
										29 June 2007

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

    Subj:	REVIEW OF NAVAL RECORD OF 

Ref:	(a) 10 U.S.C. 1552

End:	(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 Navy, filed enclosure (1) with this Board requesting an upgrade of his other than honorable discharge.

2.	The Board, consisting of Mr. Ms. and Mr. reviewed Petitioner’s allegations of error and injustice on 27 June 2007 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.

b.	Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to waive the statue of limitations and review the application on its merits.

c.	Petitioner enlisted in the Navy on 22 August 1994 at age 18. During the period from 3 August 1995 to 3 August 1996 he received three nonjudicial punishments (NJP’s) for four instances of insubordination, disrespect, underage drinking, destruction of
government property, and disobedience. Additionally, he was counseled and warned concerning the consequences of further misconduct.

d.	On 5 August 1996, Petitioner was notified of pending administrative separation action by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. He was further advised that the least favorable characterization of service he could receive would be a general discharge. Petitioner, waived his right~ to consul counsel and to submit in response to the administrative discharge action.

e.	On 7 August 1996 his commanding officer (CO) forwarded Petitioner’s case to the Chief of Naval Personnel. He stated, in part, that Petitioner had not made the transition from civilian to Sailor and that his work ethic was average at best. Further, his contempt of authority figures and divisiveness within his division made him an intolerable liability to the command. Finally, he stated that the Petitioner was being transferred to a transient personnel unit (TPU) for separation processing and that the TPU would determine the date and characterization of service. Petitioner received an other than honorable (0TH) discharge on 4 October 1996.

f.	With his application, Petitioner states that he was mislead into thinking that he was to be issued a general discharge, only learned that he was being issued an 0TH on the day of his discharge and was not afforded legal counsel.

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants favorable action.

The CO’s letter of notification shows that Petitioner was informed that the least favorable characterization of service in his case would be a general discharge and he clearly waived his procedural rights based on the expectation that he would receive a general discharge. Although, the CO’s subsequent letter states that the TPU would determine Petitioner’s characterization of service, the record fails to show that Petitioner was ever advised that he could receive an 0TH discharge or that prior to the issuance of such a discharge, he would be entitled to present his case to an administrative discharge board.

2

RECOMMENDATION

a.	That Petitioner’s naval record be corrected to show that on 4 October 1996 Petitioner was issued a general discharge vice the other than honorable discharge actually issued on that date.

b.	That a copy of this report of proceedings be filed in Petitioner’s naval record.

C.	That upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received on 27 December 2005.

4.	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	ALAN E. GOLDSMITH
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.

								W. DEAN PFEIFFER
								Executive Director