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NAVY | BCNR | CY1998 | 07460-98
Original file (07460-98.pdf) Auto-classification: Denied
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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