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NAVY | BCNR | CY1999 | 01128-99
Original file (01128-99.pdf) Auto-classification: Denied
D E P A R T M E N T  OF T H E  N A V Y  
DOMD FOR CORRECTION OF NAVAL RECORDS 

2 NAW ANNEX 

WASHINGTON DC  203706100 

TJR 
Docket No:  1128-99 
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-raember panel of the Board for Correction of Naval 
Records, sitting in executive session, considered your 
application on 20 July 1999.  Your allegations of error and 
injustice were reviewed in accordance with administrative 
regulations and procedures appliuable to the proceedings of this 
Board.  Documentary material considered by the Board consisted of 
your application, together with all material suhnitted 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 30 June 1972 
at the age of 20.  Your record reflects that on 10 October 1972 
you received nonjudicial punishment (NJP) for conduct unbecoming 
a Marine.  The punishment imposed was  forfeitures totalling $60. 
On 16 February 1973 you received NJP for absence from your 
appointed place of duty.  The punishment imposed was forfeitures 
totalling $75 and restriction for 10 days.  On 26 April 1973 you 
were convicted by special court-martial  (SPCM) of two periods of 
unauthorized absence (UA) totalling 22 days and breaking 
restriction.  You were sentenced to confinemant at hard labor for 
a month and forfeitures totalling $200.  On 15 August 1973 you 
were convicted by SPCM  of a 24 day period of UA.  You were 
sentenced to restriation for 14 days and forfeitures totalling 
$75.  On 27 August 1973 you received your third N J P   for two 
incidents of breaking restriction.  The punishment imposed was 
forfeitures totalling $75. 

Your  record  a l s o   reflects  that  d u r i n g   t h e  p e r i o d   from  18 
Septenrber  t o  27 November  1973 you  w e r e   i n  a  UA  s t a t u s   on  f o u r  
occasions  f o r  a  t o t a l   of  38 days.  On  4  January  1974  you 
submitted  a  w r i t t e n   r e q u e s t   f o r  a n   u n d e s i r a b l e   discharge i n  o r d e r  
t o  a v o i d   t r i a l   by  c o u r t - m a r t i a l   f o r   t h e   foregoing p e r i o d s   o f   UA. 
Your  record  shows  t h a t  p r i o r   t o  s u h n i t t i n g   this  r e q u e s t ,   you 
c o n f e r r e d   w i t h   a  q u a l i f i e d  m i l i t a r y   lawyer  a t  which  t i m a  you  w e r e  
advised  o f   your  r i g h t s  and  warned  o f   the  probable  adverse 
consequences  o f   a c c e p t i n g   such  a  discharge.  Subsequently,  your 
roqueut  was  g r a n t e d   and  your  commanding  o f f i c e r   was  directed  t o  
i s s u e  you  a n   u n d e s i r a b l e   discharge  by  reason  of  the  good  of  the 
service.  As a  r e s u l t   o f   t h i s   a c t i o n ,   you  w e r e   spared  t h e   stigma 
of  a  c o u r t - m a r t i a l   c o n v i c t i o n   and  t h e   p o t e n t i a l   p e n a l t i e s   of  a 
p u n i t i v e   d i s c h a r g e  and  confinement  a t  hard  l a b o r .   On  24  January 
1973 you  w e r e   s o  discharged. 

The  Board,  i n  i t s  review  o f   your  e n t i r e   record  and  a p p l i c a t i o n ,  
c a r e f u l l y   considered  a l l  m i t i g a t i n g   f a c t o r s ,   such  as your  youth 
and  immaturity,  and  your  contention  t h a t  you  would  l i k e  your 
d i s c h a r g e  upgraded.  The  Board  f u r t h e r   considered  your  contention 
t h a t  you  did  n o t   receive  effective  r e p r e s e n t a t i o n .   However,  t h e  
Board  found  the  evidence  and materials  submitted w e r e   n o t  
s u f f i c i e n t  t o  warrant  r e c h a r a c t e r i z a t i o n   o f   your  d i s c h a r g e   given 
t h e   s e r i o u s   n a t u r e   o f   your  f r e q u e n t   misconduct,  which  r e s u l t e d   i n  
t h r e e   NJPs  and  two  court-martial  convictions,  and  especially your 
r e q u e s t   f o r  d i s c h a r g e   t o  avoid  t r i a l   f o r  m u l t i p l e  p e r i o d s   o f   UA. 
The  Board  believed  that  considerable  clemency  was  extended  t o  you 
when  your  r e q u e s t   for  d i s c h a r g e   t o  avoid  t r i a l  by  c o u r t - m a r t i a l  
w a s   approved  s i n c e ,   by  this  a c t i o n ,   you  escaped  the  p o s s i b i l i t y  
o f   confinement  a t  h a r d   labor  and  a  p u n i t i v e   discharge.  F u r t h e r ,  
t h e   Board  concluded  that  you  received  t h e  b e n e f i t   o f   your  bargain 
w i t h   t h e  Marine  Corps  when  your  r e q u e s t   f o r  discharge  was  granted 
and  should  n o t   be  p e r m i t t e d   t o  change  it now.  Given  a l l   the 
circumstances  of  your  case  the  Board  concluded your  discharge  was 
proper  as  i s s u e d  and  no  change  i s  warranted.  Accordingly,  your 
a p p l i c a t i o n   h a s   been  denied. 

The  names  and  v o t e s   o f   the  members  of  the  panel  w i l l   be  furnished 
upon  r e q u e a t .  

I t  i s  regretted  t h a t   t h e   circumstances  of  your  case  are  such t h a t  
f a v o r a b l e  a c t i o n   cannot  be taken.  You  are  e n t i t l e d   t o  have  the 
Board  r e c o n s i d e r   i t s  d e c i u i o n   upon  s u b i s s i o n  of  new  and  material 
evidence  or  other  m a t t e r   n o t   p r e v i o u s l y   considered  by  the  Board. 
I n   t h i s   regard,  it i s  important  t o  keep  i n  mind  t h a t   a 
presumption  o f   r e g u l a r i t y   attaches  t o  a l l  o f f i c i a l   records. 

Conuequently,  when  applying  for  a  correction of  an  official naval 
record,  the burden i 8  on  the  applicant  t o  -nstrate 
e x i s t e n c e   o f   probable  material  error  o r   i n j u s t i c e .  

the 

Sincerely, 

W .   DEAN  PFELFFER 
Executive  Director 



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