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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