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NAVY | BCNR | CY2003 | 02633-03
Original file (02633-03.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
         WASHINGTON DC 20370-5100
         

                  CRS
 Docket No: 2633-03
28 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 27 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 enlisted in the Marine Corps on 6 September 1967. The record reflects that you received nonjudicial punishment and were convicted by a special court— martial. The offenses included unauthorized absences totalling 59 days. Subsequently, you were convicted by civil authorities of breaking and entering. The court sentenced you to confinement for one year which, after three months, was changed to probation for four years.

On 17 February 1970 you submitted a written request for an undesirable discharge in order to avoid trial by court—martial for an unauthorized absence of 244 days. 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 the undesirable discharge on 26 March 1970.






In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth and immaturity and family problems. However, the Board found that these factors were not sufficient to warrant recharacterization of your discharge given your request for discharge to avoid trial for an unauthorized absence of about eight months, and your total period of absence of about ten 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




















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