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
I
TJR
Docket No: 7460-98
16 April 1999
This is in reference to your application for correction of your
naval record pursuant to the provisions bf 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 13 April 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
The Board found you enlisted in the Marine Corps on 18 April 1972
at the age of 17. Your record shows that on 7 November 1972 you
received nonjudicial punishment (NJP) for a four day period of
unauthorized absence (UA) . The punishment imposed was
restriction for 14 days and forfeitures totalling $25. The
restriction was suspended for 30 days.
On 17 January and again on 9 February 1973 you received NJP for
two incidents of UA totalling four days. On 1 August 1973 you
were convicted by special court-martial (SPCM) of two incidents
of UA totalling 52 days. You were sentenced to confinement at
hard labor for a month and forfeitures totalling $100.
Your record also reflects that on 29 May 1974 you were convicted
by SPCM of three incidents of UA totalling nine days. You were
sentenced to confinement at hard'labor for two months, reduction
to paygrade E-1, forfeitures totalling $400, and a'bad conduct
discharge (BCD). On 9 August 1974 you received NJP- for failure
to obey a lawful order. The punishment imposed was restriction
for 14.days and forfeitures totalling $84, all of which was
suspended fnr 60 days. On 21 August 1974 the BCD was suspended
for six months.
Your record further reflects that on 6 May 1975 you received your
fifth NJP for assault; The punishment imposed was forfeitures
totalling $70 and restriction and extra duty for 14 days. Part
of the punishment was suspended.
On 30 July 1975 you began a 22 day period of UA that was not
terminated until 21 August 1975. On 5 September 1975 you
submitted a written request for an undesirable discharge in order
to avoid trial by court-martial for the foregoing period of UA,
disrespect, disobedience, and breaking restriction. Your record
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. On 16 September 1975 your request
was granted and your commanding officer was directed to issue you
an undesirable discharge by reason of the good of the service.
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. On 25
September 1975 you were' issued an other than honorable
discharged.
The Board, in its review of your entire record and application,
carefully considered all mitigating factors, such as your youth
and immaturity, and your contention that you would like your
discharge upgraded. The Board further considered your contention
that you were originally to receive a general discharge and were
told to sign for the undesirable discharge because it would be
upgraded at a later time. However, the Board found the evidence
and materials submitted were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your frequent misconduct which'resulted in five NJPs and two
court-martial convictions, and especially your request for
discharge to avoid t r i a l for committing more offenses after the
BCD had been suspended. The Board believed that a considerable
amount of 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 with the Marine
Corps when your request for discharge was granted and should not
be permitted to change it now. Further, there is no evidence in
the record, and you have submitted none, to support your
contention that you were to receive a general discharge. Given
all the circumstances of your case the.Board concluded your
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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