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NAVY | BCNR | CY2003 | 02615-03
Original file (02615-03.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 FC
Docket No: 02615-03
29 August 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 28 August 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 reenlisted in the Navy on 10 December 1971 after 43 months of prior active service. You served without incident until 14 June 1972, when you received nonjudicial punishment for a three-day period of unauthorized absence (UA), and were awarded a forfeiture of pay.

On 25 June 1972, you returned from a five-day period of UA. On that same day, you commenced another period of UA. On 8 July 1972, you were apprehended by civil authorities on charges of possession of marijuana and a bomb. There is no record of any disposition for these charges, and you were apparently released. On 8 January 1973, you were apprehended by civil authorities, and returned to military control after 197 days of UA. On 20 February 1973, you escaped from military custody and were apprehended by military authorities on 4 April 1973 after a 46-day period of UA.

         Although the request for discharge is not in your record, it appears that you subsequently requested an other than honorable discharge in order to escape trial by court-martial for the foregoing periods of UA. 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 15 June 1973, 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 the length of time that has passed since you were discharged from the Navy, and your prior period of honorable service. 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 the lengthy periods of UA. 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. 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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