DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6562-17 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 Encl: (1) DD Form 149 w/attachments (2) Voluntary leave awaiting appellate review ltr of 15 Feb 94 (3) Notification of completed appellate review ltr of 19 Sep 95 (4) SPCM Supplemental Order of 29 Sep 95 (5) DD Form 214 of 5 Oct 95 (6) CO, ltr of 17 Oct 97 (7) DD Form 214 of 17 Oct 97 1. Pursuant to the provisions of the reference, Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with this Board, requesting that (1) his two Certificates of Release or Discharge from Active Duty (DD Forms 214) be combined into one true form, (2) his first name be corrected on his 1995 DD Form 214, (3) his rank be corrected to lance corporal (LCpl) and his paygrade to E-3, (4) his separation date be corrected to 17 October 1997, (5) full awards verification be completed, (6) all property taken when he was sent home on appellate leave be restored, or monetary compensation awarded, (7) his characterization of service be upgraded to honorable, and (8) all benefits, including any monies owed, be restored. 2. The Board, consisting of, reviewed Petitioner's allegations of error and injustice on 28 November 2018 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, relevant portions of Petitioner’s 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 regulation 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 statute of limitations and review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 2 August 1990. On 22 May 1991, Petitioner received non-judicial punishment (NJP) for failure to go to his appointed place of duty. On 25 May 1993, Petitioner was convicted by special court-martial (SPCM) of stealing various computer components and a computer disk drive, property of the United States Government. He was sentenced to confinement, forfeiture of pay, reduction to paygrade E-1, and a bad-conduct discharge (BCD). A pretrial agreement suspended the BCD for one year after the convening authority’s action. On 28 January 1994, Petitioner received NJP for absence from his appointed place of duty. On 8 February 1994, the convening authority purported to vacate the suspended BCD. d. On 15 February 1994, Petitioner was ordered to voluntary leave to await appellate review of his punitive discharge. Effective 14 June 1994, Petitioner was transferred by service record to the Navy and Marine Corps Appellate Leave Activity (NAMALA), and his status was changed to involuntary appellate leave. e. On 19 September 1995, appellate review was completed. Only Petitioner’s sentence of confinement, forfeiture of pay, and reduction in rank were finally affirmed. In a letter dated 29 September 1995, the NAMALA notified Petitioner of his discharge with an other than honorable (OTH) characterization of service. Upon his discharge, Petitioner was issued a DD Form 214 that incorrectly spelled his first name as f. Petitioner’s record includes a letter from the NAMALA dated 17 October 1997 indicating his discharge was affected on 17 October 1997. A second DD Form 214 was issued erroneously indicating a “general discharge” character of service, “LCpl/E-1” rank /paygrade with an effective date of 27 September 1991, entitlement to the Good Conduct Medal, and several other administrative errors. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board determined that the record clearly reflects Petitioner was discharged at the conclusion of the appellate review process on 5 October 1995, with an OTH characterization of service. The 1997 NAMALA letter and DD Form 214 were issued in error and should be removed. By removing the 1997 letter and DD Form 214, Petitioner’s record will reflect one DD form 214 with his correct separation date, rank, paygrade, and character of service. The Board determined that Petitioner has failed to exhaust his administrative remedies in regards to his awards entitlements and will direct this portion of his request to Headquarters, Marine Corps Awards Branch (MMMA) for adjudication. Petitioner’s request for restoration of all property, or monetary compensation, is denied as Petitioner was discharged as the result of a SPCM. In regards to Petitioner’s request that his characterization of service be changed to honorable, the Board determined that the seriousness of his misconduct—which resulted in two NJPs and a SPCM conviction—does not warrant an upgrade. Petitioner has failed to exhaust his administrative remedies in regards to any pay or travel benefits owed. Petitioner should contact the Defense Finance and Accounting Service (DFAS) via DD Form 827, Application for Arrears in Pay. In view of the foregoing, the Board finds the existence of an error and injustice warranting the following corrective action. RECOMMENDATION: That Petitioner be issued a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty (DD Form 215) indicating his first name as That MMMA conduct a full awards verification of Petitioner’s record to determine his entitlement to all eligible awards. That the 1997 NAMALA letter and DD Form 214 with separation date 17 October 1997 be removed from Petitioner’s record. That no further changes be made to the record. That a copy of this Record of Proceedings be filed in Petitioner’s naval record. That upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received on 31 July 2017. 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. 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 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy. Executive Director