DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490

Docket No: 1080-19  
Ref: Signature Date  

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

Subj:  REVIEW OF NAVAL RECORD OF FORMER 

Ref:    (a) 10 U.S.C. § 1552 

Encl:   (1) DD Form 149 

1.  Pursuant to the reference, Petitioner, a former enlisted member of the Marine Corps, filed the enclosure with the Board for Correction of Naval Records (Board) requesting restoration of rank to E-5, upgrading his discharge to honorable, and changing his separation and reentry (RE) codes. 

2.  The Board, consisting of                               , reviewed Petitioner’s 
allegations of error and injustice on 25 November 2019 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, as well as 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.  Petitioner enlisted in the Marine Corps and began a period of active duty on 8 September 2004.

      c.  On 19 September 2013, Petitioner, an E-6, was convicted by special court-martial (SPCM) of violating Articles 92 (fraternization with an E-2) and 107 (false official statement) of the Uniform Code of Military Justice (UCMJ) and sentenced to reduction in rank to E-5. 

      d.  On 12 January 2016, Petitioner was tried by general court-martial (GCM) for violating Article 120 of the UCMJ (sexual assault) and convicted of a lesser included offense (assault consummated by battery with means likely to cause grievous bodily harm, to with transmitting genital herpes) and sentenced to restriction, hard labor without confinement, and reduction in rank to E-1. 

      e.  On 25 January 2016, Petitioner was counseled that he would receive a general (under honorable conditions) discharge based on his SPCM and GCM convictions. 

      f.  On 1 February 2016, Petitioner was counseled that he was not recommended for reenlistment and would be assigned a RE code of RE-4. 

      g.  On 12 February 2016, Petitioner was discharged as an E-1 with a general (under honorable conditions) characterization of service, a separation code of “KBK3” indicating completion of required active service and a RE code of RE-4.

      h.  On 24 July 2018, Petitioner received notification of his GCM appellate review that determined that the “findings and sentence are not supported by law.  Findings and sentence are set aside. Rehearing is authorized.” 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board found that because the reduction in rank from E-5 to E-1 was part of the GCM conviction that was set aside, Petitioner’s rank should be E-5.  With respect to the characterization of service, separation code and RE code, the Board found no error or injustice warranting clemency. 

RECOMMENDATION 

In view of the above, the Board directs the following corrective action. 

That Petitioner’s naval record be corrected by changing Petitioner’s rank to E-5. 

That Petitioner be issued a new DD Form 214 Certificate of Release or Discharge from Active Duty showing the above changes. 

That no further action be granted. 

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

That upon request, the Department of Veterans Affairs is informed that Petitioner’s application was received by the Board on 29 January 2019. 

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. 


1/27/2020