DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
FC
Docket No: 10188—02
28 April 2003
This is in reference to your application for correction of your naval
record pursuant to the provisions of Title 10 of the 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 23 April 2003. 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 Army in July 1974 at age 19 and
were honorably discharged on 6 June 1975.
You enlisted in the Navy on 14 December 1976 and were honorably discharged
on 15 December 1978. On 2 April 1980, you reenlisted in the Navy. On 1
July 1980, you received nonjudicial punishment for a brief period of
unauthorized absence and missing ship’s movement, and were awarded
restriction and a suspended forfeiture of pay. On 28 August 1980, you
received a second NJP for an unspecified offense.
The record shows that you were an unnauthorized absentee from 19 January
through 23 January 1981, a period of 4 days; and from 2 February 1981
through 7 May 1981, a period of 95 days. Although the request for
discharge is not in your record, it appears that you subsequently
requested an other than honorable discharge in
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order to escape trial by court-martial for the 95-day period of absence.
The Board presumed that prior to submitting your request, and in accordance
with applicable directives, you conferred with a qualified military lawyer
and were advised of your rights and warned of the probable adverse
consequences of accepting such a discharge. It appears that 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. The record clearly shows that on 9
July 1981, you received an other than honorable discharge for the good of
the service to escape trial.
In its review of your case, The Board carefully weighed all potentially
mitigating factors, such as your youth and immaturity and the length of
time that has passed since you were discharged from the Navy, 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 two periods of unauthorized absence totaling more than
three months. The Board believed that considerable clemency was extended to
you when your request for discharge to avoid trial by court-marital 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. The Board
concluded that your discharge was proper as issued and no change 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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