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NAVY | BCNR | CY2004 | 01178-04
Original file (01178-04.rtf) Auto-classification: Denied
                                    DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 FC
Docket No: 1178-04
2 August 2004


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 July 2004. 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 a nd conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustices .
The Bo ard f ound that you reen liste d in the Marine Corps on 15 January 1986 after 30 months of prior active service. You then served without incident until 3 January 1987, when you commenced a period of unauthorized absence (UA) that lasted until On 22
 November 1988.
On 30 November 1988 you requested an undesirable discharge in order to avoid trial by court-martial for the foregoing 684-day period of UA. Prior to submitting this request for discharge, 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. On 2 December 1988 the separation authority approved your request and the commanding officer was directed to issue you an other than honorable discharge for the good of the service in lieu of trial by courtmartial. 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. On 5 December 1988 you received an other than honorable discharge.
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 Marine Corps and your prior period of honorable service. However, the Board concluded that these factors were not sufficient to warrant recharcterization of your discharge because of your request for discharge to avoid trial by court martial for a period of unauthorized absence of over 22 months. 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,
2

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