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NAVY | BCNR | CY2004 | 09213-04
Original file (09213-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                           TJR
                                                                                          Docket No: 9213-04
                                                                                          29 August 2005


This is in reference to your application for correction of your naval record pursuant to the provisions of Title 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 16 August 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 27 August 1979 at age 18. During the period from 12 December 1979 to 13 October 1980 you received nonjudicial punishment (NJP) on five occasions for three periods of unauthorized absence (UA) totalling nine days, sleeping on post, and three periods of absence from your appointed place of duty.
During the period from 7 November 1980 to 20 January 1982 you were in a UA status on two occasions for a total of 403 days. Although the discharge documentation is not in your record, it appears that you requested discharge for the good of the service to avoid trial by court-martial. Regulations required that before making such a request, an individual must be advised by military counsel concerning the consequences of such a request. Since the record shows that you were discharged by reason of good of the service to avoid trial on 3 March 1982, the Board presumed that the foregoing occurred in your case. Because you requested discharge in lieu of trial, you avoided the possibility 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 assertion that your reason for discharge should not be under other than honorable conditions. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive misconduct, which resulted in five NJPs, and your lengthy periods of UA which resulted in your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. The Board 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. 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 PFIEFFER
Executive Director

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