DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 2387-00
4 June 2001
Dear
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 23 May 2001. 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 that the evidence submitted was insufficient to establish the
existence of probable material error or injustice.
The Board found that you enlisted in the Marine Corps on 28 August 1974 at
age 18. The record reflects that on 22 May 1975 you received nonjudicial
punishment for an unauthorized absence of 12 days.
On 14 August 1975 you submitted a written request for an undesirable
discharge in order to avoid trial by court—martial for an unauthorized
absence of 38 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.
Your request was granted and, 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. You received an
undesirable discharge on 8 September 1975.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your youth and immaturity and
personal problems. However, the Board found that these
factors were not sufficient to warrant recharacterization of your discharge
given your request for discharge to avoid trial for an unauthorized absence
of more than a month. The Board also noted that you had a prior
disciplinary action. The Board believed that considerable clemency was
extended to you when your request 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 when your request for discharge
was granted and should not be permitted to change it now. Therefore, the
Board concluded that 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
2
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