DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 8138-04
5 October 2005
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 21
September 2005. 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 Navy on 9 April 1997. The
record reflects that on 23 July 1997 you received nonjudicial
punishment for an unauthorized absence of 22 days and use of
marijuana.
The record also shows you were an unauthorized absentee from 23 July
1997 to 29 December 1998, a total of 514 days. Although the request
for discharge is not in your record, it appears that you subsequently
requested an other than honorable discharge in order to avoid trial
by court-martial for the foregoing period of absence. The Board
presumed that prior to submitting this request, and in accordance
with applicable directives, 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. 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 16 February 1999 you
received an other than honorable discharge for the good of the
service in order to escape trial.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as the contention that you were not
given any drug treatment so you could not obey any commands. 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 an unauthorized absence of about 17 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 PF
Executive D
2
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