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: 646-99
22 July 1999
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 13 July 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 20 September
1973 at the age of 17. Your record reflects that you served for
a year without disciplinary incident but on 5 October 1974 you
were convicted by special court-martial (SPCM) of a five day
period of unauthorized absence (UA) and possession of marijuana.
You were sentenced to confinement at hard labor for 30 days,
forfeitures totalling $229, and reduction to paygrade E-1.
Your record also reflects that on 28 June 1975 you received
nonjudicial punishment (NJP) for absence from your appointed
place of duty. The punishment imposed was restriction and extra
duty for 30 days and reduction to paygrade E-1. The reduction
was suspended for four months. Shortly thereafter, on 7 July
1975, you received NJP for breaking restriction. The punishment
imposed was forfeitures totalling $75.
On 11 August 1975 you began a 185 day period of UA that was not
terminated until 12 February 1976. On 18 March 1976 you
submitted a written request for an undesirable discharge in order
to avoid trial by court-martial for the foregoing period 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, 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 5 April
1976 you were so 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 undergoing severe family stress and went UA to help
with family matters while your father recovered from a heart
attack. However, the Board found the evidence and materials
submitted were not sufficient to warrant recharacterization of
your discharge given the serious nature of your frequent
misconduct and especially your request for discharge to avoid
trial for the lengthy period of UA. 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 you 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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