DEPARTMENT OF

 

THE:  NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC

 

2037C-5100

ELP
Docket No. 6404-00
11 June 2001

Dear

This is in reference to  
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

y'our application for correction of your

A three-member panel for the Board for Correction of Navy
Records, sitting in executive session, considered your
application on 6 June 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, applicable statutes, regulations and policies.

Your allegations of error and

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 was unable to obtain your service record and
review on the Naval Discharge Review Eoard  
you provided.

(NDRB) case

based its
summary

May 1971
The record reflects that on 3 August

The Board found you enlisted in the Marine Corps on 28
for four years at age 17.
1971 you were advised that you were being considered for an
administrative discharge due to your  
However, the 
service police record.
you had potential to serve and  
concealment of a  
enlistment.

recomme,nded waiver of your
Ipolice record as a basis for a fraudulent

f'ailure to disclose a 
pre-
clommanding  officer believed

You then completed recruit training and served without further
incident until 16 August 1972,
unauthorized absence (UA).

Your medical record reflects

yclu began a 174 day period of

when 

that on 17 April 1973 while awaiting trial by court-martial, you
were referred for a psychiatric evaluation.
report noted that you went UA due to rather vaguely described
pressures that were building up,
useless and senseless things.
going UA was to help your ill mother in California and a younger
brother who had been detained for drugs.
UA, you immediately hitchhiked to Boston because you were afraid
you would be caught in California.
and brother but their situations would not allow for it because
your mother had been hospitalized again for alcoholism.

and feelings of being made to do
You claimed one of the reasons for

You sent for your ill mother

The consultation

However, when you went

On 30 April 1973 you were convicted by special court-martial of
UA from 16 August 1972 to 11 February 1973.
You were sentenced
to confinement at hard labor for three months, forfeitures of $50
per month for three months,
bad conduct discharge.

reduction in rank to PVT (E-l), and a

Records available to the NDRB indicated that on 29 May 1973 you
However, on that
submitted a request for a hardship discharge.
date you were again reported UA.
As a result of your being UA,
all processing on your hardship discharge was terminated since it
could not be continued until you returned to military control and
You remained absent
all disciplinary action had been completed.
until surrendering to civil authorities on 10 July 1974.
bad conduct discharge was ordered  
you were so discharged on 26 July 1974.

The
exemcuted on 23 July 1974 and

On 28 June 1977 your.bad conduct discharge was changed to a
clemency discharge pursuant to  
16 September 1974.

Presioential Proclamation 4313 of

Under the Ford Clemency Program, individuals with bad conduct
discharges who applied to the Presidential Clemency Board were
either given a clemency discharge  
alternate service in order to receive such a discharge.
the Department of Veterans Administrative nor the Department of
Defense considers the recipient of a clemency discharge to be
entitled to any benefits that were denied by reason of the
original discharge. The clemency discharge was somewhat less
stigmatizing, and no benefits resulted from its issuance.
presidential pardon that accompanied the clemency discharge had
the effect of restoring those civil rights that were denied as a
result of a court-martial conviction.

and a pardon or had to perform
Neither

The

In 1977, the Department of Defense announced the establishment of
the Special Discharge Review Program (SDRP).
permitted Vietnam-era recipients with general and undesirable
discharges to apply to the appropriate discharge review board for

This program

While this program was broader

an upgrade of their discharges.
than the Clemency Program because it was not limited to
discharges resulting from absence-related offenses, it was
narrower because bad conduct and dishonorable discharges were
Your discharge was reviewed under the SDRP on
not included.
15 September 1977 and it was determined that you were ineligible
for upgrade because the discharge resulted from a court-martial
conviction.

With the enactment of Public Law 96-126, veterans benefits were
not permitted unless an upgrade was granted by a discharge review
using uniform standards which
board, on a case-by-case basis,
were historically consistent with the criteria for determining
characterization of service.
your discharge under uniform standards and found no basis for
recharacterizing your service.

On 11 August 1981 the NDRB reviewed

tr.aining  certificates, and the fact that it
ye.ars since you were discharged.

The Board

ap:plication the Board carefully weighed all
f,actors such as your youth and immaturity,

In its review of your 
potentially mitigating  
limited education, good post-service conduct, continuing
education in college,
has been more than 26 
noted your contentions to the effect that the NDRB focused
exclusively on the two offenses of UA for which you were pardoned
by President Ford, that the NDRB ignored your prior satisfactory
service and your request for a hardship discharge, and that you
had no criminal record since discharge.
the foregoing factors  
warrant recharacterization of your discharge given your special
court-martial conviction of a prolonged period of UA totalling
nearly six months; and the subsequent UA while awaiting appellate
review, that exceeded more than a year.
aggravating factor that after you were awarded a bad conduct
discharge you forfeited -your right to request restoration to
duty, or the remote possibility of having a hardship discharge
approved, by going UA again.
evidence of any circumstance that would justify these two
prolonged periods of UA.
discharge would be an injustice to those who served without any
misconduct.
applicable law and regulations,
characterizes your service.

Further, you have provided no
The Board believed to upgrade your

Your discharge was effected in accordance with

and the discharge appropriately

an'd contentions were insufficient to

The Board concluded that

The Board noted the

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
Ycu are entitled to have the
favorable action cannot be taken.
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  
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.

tc' all official records.

Sincerely,

W. DEAN PFEIFFER
Executive Director