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NAVY | BCNR | CY2004 | 09459-04
Original file (09459-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
          WASHINGTON DC 20370-5100        

                                                      TJR
                                              Docket No: 0 9459-04
                                             31 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 23 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 7 October 1981 at age 19. You served without disciplinary incident until 18 April 1983, when you received nonjudicial punishment (NJP) for absence from your appointed place of duty. The punishment imposed was restriction and extra duty for seven days and a $167 forfeiture of pay.
During the period from 7 June to 11 September 1983 you were in an unauthorized absence (UA) status on two occasions for a total of 81 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 for the foregoing periods of UA. Regulations required that before making such a request, an individual 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 22 September 1983, 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 assertions that you were not afforded your procedural rights prior to being discharged and were threatened with a court-martial conviction as a means to manipulate you into accepting a discharge. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your misconduct and lengthy periods of UA, which presumably resulted in a request for discharge in lieu of trial. 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 further 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. Further, the Board noted that there is no evidence in the record, and you provided none, to support your assertions. 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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