DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370.5100
CRS
Docket No: 5605-01
30 July 2001
Your allegations of error and
court-
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 24 July 2001.
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 1 April
1969 at age 18.
The record reflects that you received
nonjudicial punishment and were convicted by a summary
martial.
more than 14 days and breaking restriction.
On 1 December 1970 you submitted a written request for an
undesirable discharge in order to avoid trial by court-martial
for an unauthorized absence of 228 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.
1970.
In its review of your application the Board carefully weighed all
The offenses included unauthorized absences totalling
You received an undesirable discharge on 21 December
The Board also
The Board
potentially mitigating factors,
such as your youth and immaturity
and the contention that you were told that the discharge would be
upgraded after six months.
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 seven months.
noted that you had prior disciplinary actions.
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.
that you received the benefit of your bargain when your request
for discharge was granted and should not be permitted to change
it now.
In this regard, no law or military regulation provides
for upgrading a discharge based solely on 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.
Further, the Board concluded
Sincerely,
W. DEAN PFEIFFER
Executive Director
2
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