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 ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 4010-98
2 June 1999
This is in reference to your application on behalf of your former
late husband for correction of his 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 26 May 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 former husband's 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 your former husband enlisted in the Marine
Corps on 17 December 1974 at age 20. His record reflects that he
received three nonjudicial punishments. The offenses included
stealing two shirts valued at $6.86 and absence from his
appointed place of duty on two occasions.
His military record shows that on 11 December 1975 he submitted a
written request.for an undesirable discharge in order to avoid
trial by court-martial for possession of marijuana on two
occasions. ,The record also shows that prior to submitting this
request he conferred with a qualified military lawyer at which
time he was advised of his rights and warned of the probable
adverse consequences of accepting such a discharge. The Board
found that his request was granted and, as a result of this
action, he was spared the stigma of a court-martial conviction
and the potential penalties of a punitive discharge and
confinement at hard labor. He received an undesirable discharge
on 29 December 1975.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as his youth and immaturity
and the contention that he may have received a general discharge.
However, the Board found these factors were not sufficient to
warrant recharacterization of his discharge, given his use of
drugs. The Board believed that considerable clemency was
extended to him when his request to avoid trial by court-martial
was approved since, by this action, he escaped the possibility of
confinement at hard labor and a punitive discharge. Further, the
Board concluded that he received the benefit of his bargain when
his request for discharge was granted and no change should now be
permitted. In this regard, there is no evidence that he received
a general discharge. Therefore, the Board concluded that his
discharge was proper as issued and no change is warranted.
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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