DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5729-09
28 April 2010
This is in reference to your application for correction of your
haval record pursuant to the provisions of title 10 of the United
States Code, section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered Vour
application on 21 April 2010. Your allegations of error and
injustice were teviewed 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 17 August 1972 at age 19. Onl September 1972, you
received nonjudicial punishment (NUP) for unauthorized absence
(UA) from your appointed place of duty. On 27 September 1972 you
were UA from your unit for a period of 85 days until you were
apprehended on 21 December 1972. On 3 January 1973, you
submitted a written request to be discharged for the good of the
service to avoid trial by court-martial for the above period of
UA. You conferred with a qualified military lawyer, were advised
of your rights, and warned of the probable adverse consequences
of accepting such a discharge. On 10 January 1973, your
commanding officer forwarded his recommendation that you be
discharged for the. good of the service with an other than
honorable (OTH) discharge. On 16 January 1973, the separation
authority approved an OTH discharge for the good of the service.
On 23 January 1973 you were so discharged. 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.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge given the seriousness of your misconduct and
request for discharge to avoid trial. The Board believed that
considerable clemency was extended to you when your request for
discharge was approved. The Board also 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. Finally, there is no provision of
law or in Navy regulations that allows for recharacterization of
service due solely to the passage of time. 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,
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