DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
ELP
Docket No. 2116-01
2 July 2001
Dear -citiimialien
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 Navy Records,
sitting in executive session, considered your application on
26 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
You enlisted in the Navy on 31 October 1973 for four years at age
18. The record reflects that you were advanced to AA (E-2) and
served for six months without incident. However, during the
three month period from April to July 1974, you received two
nonjudicial punishments (NJP) for seven instances of failure to
go or absence from your appointed place of duty, two instances of
failure to obey a lawful order, and three brief periods of
unauthorized absence (UA) totalling about two days.
On 2 January 1975 you were convicted by special court-martial of
two periods of UA totalling about 88 days, from 5 August to
29 October and 8+11 November 1974; failure to obey a lawful
order; two specifications of assault; disrespect; resisting
apprehension; and communicating a threat. You were sentenced
to confinement at hard labor for three months, forfeitures of
$226 per month for three months, and a bad conduct discharge. On
20 February 1975 the supervisory authority approved the sentence
but suspended the unserved portion of confinement for a period of
six months. You were released from confinement on 18 March 1975
and placed on appellate leave on 7 May 1975. The Navy Board of
Review affirmed the findings and the sentence on 15 August 1975.
You received the bad conduct discharge on 10 May 1976
In its review of your application the Board carefully weighed all
potentially mitigating factors such as your youth and immaturity,
letters of reference, and the fact that it has been more than 25
years since your discharge. The Board considered your conten-
tions that you came from an unstable background and that you went
UA after your girlfriend broke up with you because you had given
her a sexually transmitted disease. You claim that the addition-
al offenses of which you were found guilty arose from a racially
motivated incident, the punishment was too severe and reviewing
authorities ignored the military judge's recommendation that the
bad conduct discharge be suspended. You also point out that
since your discharge you have earned an associate's degree, are
pursuing a bachelors degree, and are a licensed emergency medical
technician.
The Board concluded that the foregoing factors, contentions and
claims were insufficient to warrant recharacterization of your
discharge given your record of two NJPs and your conviction by
special court-martial of a UA of nearly three months and the
serious offenses of assault. The Board is prohibited by law from
reviewing the findings of a court-martial and must restrict its
review to determining if the sentence should be reduced as a
matter of clemency. In other words, claims that you were not
guilty of the charges, the charges were racially motivated, the
sentence was too harsh, the convening authority did not approve
the military judge's recommendation, or mistakes of law were
made, cannot be considered by the Board because that is the
purpose of an appeal. Your contention that the additional
charges were the result of racial prejudice is neither supported
by the evidence of record or by any evidence submitted in support
of your application. Your conviction and discharge were effect-
ed in accordance with applicable law and regulations, and the
discharge appropriately characterizes your service. Additionally,
a report from the Federal Bureau of Investigation obtained by the
Board indicates that after discharge, you were convicted of
robbery, attempted armed robbery, criminal trespass, negligent
driving, driving without a license, driving under the influence,
unlawful use of a weapon, and residential burglary. The Board
concluded that the discharge was proper and no clemency 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
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