D E P A R T M E N T O F T H E N A V Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAW ANNU(
WASHINGTON DC 20370-5100
CRS
Docket No: 1747-98
30 August 1999
Dear - This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 4 August 1999. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
The Board found that you enlisted in the Navy on 3 July 1990 at
age 17. Your record reflects that on 22 August 1991 you received
nonjudicial punishment for stealing from a vending machine,
absence from your appointed place of duty, and failure to obey a
lawful order on two occasions.
On 8 October 1991 an administrative discharge recommended that
you be separated with a general discharge by reason of misconduct
due to commission of a serious offense. However, the
recommendation was held in abeyance due to a pending special
court-martial.
Your military record shows that on 1 January 1992 you submitted a
written request for an other than honorable discharge in order to
avoid trial by court-martial for larceny on seven occasions and
receiving stolen property on seven occasions. Your record also
shows that prior to submitting this request you conferred with a
qualified military lawyer at which time you were advised of your
rights and warned of the probable adverse consequences of
accepting such a discharge. The Board found that your request
was granted and, as a result of this action, you were spared the
stigma of a court-martial conviction and the potential penalties
of a punitive discharge and confinement at hard labor. You
received an other than honorable discharge on 28 February 1992.
At that time you were assigned an RE-4 reenlistment code.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your youth and
immaturity. However, the Board found that these factors were not
sufficient to warrant recharacterization of your discharge, given
the seriousness and frequency of the offenses. The Board
believed that considerable clemency was extended to you when your
request for discharge to avoid trial by court-martial was
approved since, by this action, you escaped the possibility of
confinement at hard labor and a punitive discharge. Further, the
Board concluded that you received the benefit of your bargain
when your request for discharge was granted and should not be
permitted to change it now. Based on the foregoing, the Board
concluded that no change to the discharge is warranted.
The Board noted that regulations require the assignment of an
RE-4 reenlistment code when an individual is discharged in lieu
of trial by court-martial. Since you have been treated no
differently than others in your situation, the Board could not
find an error or injustice in the assignment of your reenlistment
code.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
W. DEAN PFEIFFER
Executive Director
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