DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 8435-00
2 July 2001
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 27 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.
The Board found that you enlisted in the Marine Corps for four
years on 29 January 1975 at age 19. The record reflects that you
received four nonjudicial punishments and were convicted by a
special court-martial. The offenses included unauthorized
absences totalling 33 days, absence from your appointed place of
duty on five occasions, disrespect, assault, and damaging a
window screen.
On 17 May 1978 you submitted a written request for an other than
honorable discharge in order to avoid trial by court-martial for
unauthorized absences totalling 108 days, disrespect on two
occasions, failure to obey a lawful order, and making a false
official statement. 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 other than honorable discharge on 8 June 1978.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your youth and immaturity
and the other contentions you made in the attachment to your
application. However, the Board concluded that these factors
were not sufficient to warrant recharacterization of your
discharge given your request for discharge to avoid trial for
unauthorized absences totalling over three months. The Board
also noted your five prior disciplinary actions, and the fact
that your lost time due to unauthorized absences and confinement
totalled more than eight months. 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 when your request
for discharge was granted and should not be permitted to change
it now. Therefore, the Board concluded that no change to the
discharge 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
Copy to: Disabled American Veterans
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