DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5041-09
2 April 2010
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 24 March 2010. The names and votes of the members
of the panel will be furnished upon request. 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.
You enlisted in the Marine Corps and began a period of active
duty on 27 June 1980 at age 18. On 11 March 1982, you received
nonjudicial punishment (NUP) for unauthorized absence (UA) from
your unit for three days. On 7 July 1982, you received NIP for a
four day period of UA from your unit. On 9 October 1982, you
were UA from your unit until 7 January 1983, a period of 90 days.
On 28 March 1983, you were again UA from your unit until-14 April
1983, a period of 14 days. On 7 June 1983 you submitted a
written request for an other than honorable (OTH) discharge in
order to avoid trial by court-martial for the foregoing periods
of UA totaling 104 days. 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. On 13 June 1983 your
request was granted and the commanding officer was directed to
issue you an OTH discharge. As a result of this action, you were
spared the stigma of a court-martial conviction and the potential
penaities of a punitive discharge and confinement at hard labor.
On 15 June 1983 you were discharged under OTH conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service, and desire to upgrade your
discharge. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of your misconduct that resulted in two
NJPs, lengthy periods of UA, and request for discharge. The
Board believed that considerable clemency was extended to you
when your request for discharge to avoid trial by court-martial
was approved. 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. Accordingly, your application has been denied.
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,
Wun Sdhu:
W. DEAN P FRE
Executive W tor
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