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 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 7938-98
7 May 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 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 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 21 November
1965 at the age of 20. Your record shows that on 18 January 1966
you received nonjudicial punishment (NJP) for possession of an
unclean rifle. The punishment imposed was forfeitures totalling
$10. On 23 February 1966 you received NJP for failure to obey a
lawful order. The punishment imposed was restriction and extra
duty for seven days. Approximately two years later, on 13
February 1968, you received NJP for absence from your appointed
place of duty. The punishment imposed was a reprimand. Shortly
thereafter, on 10 April 1968, you received your fourth NJP for
possession of marijuana and a 21 day period of unauthorized
absence (UA) . The punishment imposed was restriction for 45
days, reduction to paygrade E-1, and forfeitures totalling $150.
Your record further shows that during the period from 26 August
1968 to 27 January 1970 you were in a UA status on five occasions
for a total of 442 days. On 27 February 1970 you submitted a
written request for an undesirable discharge in order to avoid
trial by court-martial for the foregoing periods of UA. 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. Subsequently, on 9 April 1970, 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 17 April
1970 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 could not adapt to military life after leaving Vietnam
and that you were l1not all togetherv1 when you accepted the offer
of an undesirable discharge. However, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge given your frequent misconduct, especially your lengthy
periods of UA, and your request for discharge to avoid trial for
these 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 with the Marine Corps when
your request for discharge was granted and should not be
permitted to change it now. 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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