DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 378-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NAVAL RECORD OF FORMER Ref: (a) 10 U.S.C. § 1552 (b) SECNA VINST 5420.193 Encl: (1) DD Form 149 with attachments 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his other than honorable (0TH) characterization of service be upgraded to a general (under honorable conditions) (GEN) characterization of service based on injustice. 2. The Board, consisting of ,reviewed Petitioner's allegations of error and injustice on 17 December 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 enclosure, 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 Navy on 22 June 1993. On 30 June 1994 and 1 July 1994, Petitioner received nonjudicial punishment (NJP) aboard the for sleeping on watch and, separately, for willfully damaging government property and disobeying a lawful order by walking on fresh decktralite (causing the aforementioned damage). Subsequently, he was notified of pending administrative action to separate him from the naval service by reason of misconduct due to commission of a serious offence. After Petitioner was advised of, and waived, his procedural rights, his commanding officer (CO) recommended that he be discharged with an 0TH characterization of service by reason of misconduct due to commission of a serious offence. The discharge authority approved this recommendation and directed Petitioner's separation under 0TH conditions by reason of misconduct. On 19 August 1994, Petitioner was so discharged. d. Petitioner contends that his 1 July 1994 NJP for willfully damaging government property and disobeying a lawful order by walking on fresh decktralite was in error or unjust because he did not willfully damage the floor and did not intentionally disobey an order. Specifically, Petitioner contends that he did not commit the offenses alleged because the fresh decktralite was not properly marked and the floor appeared to be dry. Petitioner contends, further, that his discharge with an 0TH characterization of service was unjust because it was based in part upon the 1 July 1994 NJP. MAJORITY CONCLUSION: Upon review and consideration of all the evidence ofrecord, the majority, consisting of. concludes that Petitioner's request warrants partial relief. Additionally, the majority reviewed his application under the guidance provided in references (a) and (b). The majority concluded that, based upon Petitioner's record of service, relief should be granted in the form of upgrading his characterization of service from 0TH to GEN. The majority noted Petitioner's misconduct, and does not condone his actions. The majority also noted that Petitioner's record contains no evidence, and he submitted none, to support his contentions. The majority concluded, however, that Petitioner's 0TH characterization of service was excessive and harsh based on the actual misconduct he committed while on active duty. The majority also concludes that no useful purpose is served by continuing to characterize Petitioner's service as having been 0TH, and that re-characterization to a GEN discharge is now more appropriate. In view of the foregoing, the majority finds the existence of an injustice warranting the following corrective action. MINORITY CONCLUSION: The minority, , disagrees with the majority and concludes that Petitioner's request does not warrant any favorable action. The minority notes that there is insufficient evidence to support granting Petitioner relief. In this regard, the minority notes that Petitioner had two NJPs and waived his procedural rights prior to his discharge with an 0TH characterization of service. The minority also noted that there is no evidence in Petitioner's record, and he submitted none, to support his contentions. As a result, the minority disagrees with the determination that Petitioner's misconduct should be mitigated and his characterization of service changed to GEN. MAJORITY RECOMMENDATION: That Petitioner's naval record be corrected to show that he was discharge with a GEN characterization of service on 19 August 1994, instead of the 0TH characterization actually issued. That Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214). That a copy of this Report 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 by the Board on 6 December 2018. MINORITY RECOMMENDATION: That Petitioner's request be denied. 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. The foregoing action of the Board is submitted for your review and action. Sincerely,