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
ELP
Docket No. 8438-98
12 April 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 7 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
The Board found that you enlisted in the Marine Corps on 31 March
1954 for three years at age 20. The record reflects that you
were advanced to PFC (E-2) in January 1955 but were
administratively reduced in rank due to incompetence on
28 November 1955. You served during the next two months without
incident. However, during the 11 months period from January to
November 1956 you received three nonjudicial punishments (NJP)
and were convicted by a summary court-martial and a special
court-martial. Your offenses consisted of two periods of
unauthorized absence (UA) totalling about 28 days, two instances
of failure to go to your appointed place of duty, and breaking
restriction.
On 17 January 1957 you were convicted by civil authorities on a
charge of possession of alcohol as a minor. You received a 30
day suspended sentence and a fine of $25.
On 19 February 1957, you were convicted by special court-martial
of two periods of UA from 23 January to 8 February and 9-10
February 1957, and breaking restriction. You were sentenced to
confinement at hard labor for three months, forfeitures of $65
per month for three months, and a bad conduct discharge. The
staff judge advocate noted in his review of the court-martial
that the defense counsel made an unsworn statement in mitigation
to the effect that your father had been involved in an automobile
accident which caused the death of another person. As a result,
he was sentenced to a year in prison and your mother had to move
in order to earn a living. The Navy Board of Review affirmed the
findings and the sentence on 3 April 1957. Thereafter, you
requested remission of the discharge and restoration to duty.
However, you were considered a poor risk for restoration due to
your past disciplinary record and restoration was not
recommended- On 17 April 1957 the Commandant of the Marine Corps
recommended to the Secretary of the Navy that you receive the
awarded discharge upon completion of confinement. The unexecuted
portion of the sentence to confinement was remitted on 27 April
1957. You received a fourth NJP for failure to obey a lawful
order on 16 May 1957 and received the bad conduct discharge on
31 May 1957.
In its review of your application the Board carefully weighed all
potentially mitigating factors such as your youth and immaturity,
limited education, good post-service conduct, regret for your
actions, letters of reference, and your wife's letter. The Board
also noted your contention that your parents were in an
automobile accident at the time and your requests for leave were
denied. The Board concluded that the foregoing facts and
contention were insufficient to warrant recharacterization of
your discharge given your record of four NJPs, the convictions by
a summary court-martial and two special courts-martial, and the
civil conviction. While your contention is partially supported
by the unsworn statement during your court-martial, the Board
noted that the court apparently was not convinced the automobile
accident of your father justified breaking restriction and two
periods of UA totalling about 17 days. Your contention that
leave requests were denied is not supported by any evidence in
the record or by any evidence submitted in support of your
application. Your conviction and discharge were effected in
accordance with applicable law and regulations, and the discharge
appropriately characterizes your service. The Board thus
concluded the discharge was proper 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 c o r r e c t i o n of an o f f i c i a l naval
record, t h e burden i s on t h e a p p l i c a n t to demonstrate t h e
e x i s t e n c e of probable material error or i n j u s t i c e .
S i n c e r e l y ,
W . DEAN PFEIFF'ER
Executive Director
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