DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION O F NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 10978-02'
15 October 2003
This is in reference to your application for correction of your
naval record pursuant to the provisions of ~ i t l e 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 7 October 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Marine Corps on 1 December 1975 at age 21.
You served without disciplinary incident until 27 December 1976,
when you received nonjudicial punishment ( N J P ) for absence from
your appointed place of duty and misbehavior as a sentinel. The
punishment imposed was a $75 forfeiture of pay and restriction
and extra duty for 14 days.
On 20 May 1977 you submitted a written request for an other than
honorable discharge in order to avoid trial by court-martial for
two specifications of disrespect, four specifications of
disobedience, absence from your appointed place of duty, and
theft of government property. Prior to submitting this request
for discharge, you conferred with a qualified military lawyer,
were advised of your rights, and warned of the probable adverse
consequences of accepting such a discharge. Your request also
stated, in part, as follows:
I am aware of the loss of benefits with this type of
discharge and my prerogative to attempt to upgrade it
through the VA in the future, however unlikely it actually
may be. My problems would only continue should I stay in
and only make things worse for all parties concerned. This
UD will greatly affect my chances of obtaining a good job
right away, but my relationship with other people is more
valuable to me at this time. My only regrets in leaving the
Marine Corps are that I could not be of any better service.
I understand that if a bad conduct discharge is awarded it
could be suspended. I do not want to attempt to get an
honorable or general discharge. I have explained to my
attorney, and I fully understand the various veterans
benefits I may be deprived of, should I be discharged under
conditions other than honorable. Knowing and understanding
this, I still desire to be discharged under conditions other
than honorable.
Subsequently, your request for discharge was granted and on 16
June 1977 you received an other than honorable discharge in lieu
of trial by court-martial. 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 Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and immaturity and your assertion that you were told
that your discharge would be automatically upgraded six months
after your separation. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of your frequent misconduct which resulted in
NJP and your request for discharge. The Board believed that
considerable clemency was extended to you when your request for
disrhsrge was approved s i n r ~ , by this action, you exaped the
possibility of confinement at hard labor and a punitive
discharge. The Board also concluded that you received the
benefit of your bargain with the Marine Corps when your request
for discharge was granted and should not be permitted to change
it now. Finally, no discharge is automatically upgraded due to
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.
Sincerely,
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