DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 791-01
25 June 2001
Sea: ice
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 19 June 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
The Board found you reenlisted in the Marine Corps on 3 October
1973. Your record reflects that on 8 July 1974 you were
convicted by summary court-martial (SCM) of use of a controlled
substance. You were sentenced to confinement at hard labor for
14 days, which was suspended for three months, a $150 forfeiture
of pay, and reduction to paygrade E-1.
Your record contains a letter dated 15 August 1974 which notes,
in part, that you were responding to therapy and had agreed to
continue with drug rehabilitation treatment. On 17 October 1974
you were convicted by SCM of a 36 day period of unauthorized
absence (UA). You were sentenced to restriction for 10 days, a
$150 forfeiture of pay, and confinement at hard labor for 20
days. The confinement was suspended for six months. Shortly
thereafter, on 16 December 1974 you began a 85 day period of UA
that was not terminated until you were apprehended 11 March 1975.
On 3 June 1975 you submitted a written request for an
undesirable discharge in order to avoid trial by court-martial
for the foregoing period of UA. 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.
Subsequently, your request was granted and your commanding
officer was directed to issue you an other than honorable
discharge for the good of the service. 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. On 19 June 1975 you were so
discharged.
The Board, in its review of your entire record and application,
carefully considered all mitigating factors, such as your youth
and immaturity. However, the Board found the evidence and
materials submitted were not sufficient to warrant
recharacterization of your discharge given your drug related
misconduct, repetitive periods of UA, and your request for
discharge to avoid trial for a lengthy period of UA. The Board
believed that considerable clemency was extended to you when your
request for discharge 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
with the Marine Corps when your request for discharge was granted
and you should not be permitted to change it now. 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
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