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NAVY | BCNR | CY2004 | 09640-04
Original file (09640-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 TJR
 Docket No: 9460-04
 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 3 January 1973 at age 18. During the period from 15 July 1973 to 29 March 1974 you were in an unauthorized absence (UA) status on three occasions for a total of 227 days.
On 19 December 1974 you were convicted by civil authorities of extortion and making threats through the mail. You were sentenced to probation for three years. On or about 3 May 2005 you were released from civil custody. At that time you were to return to military authorities, but failed to do so and began yet another period of UA. This period of UA was not terminated until you were apprehended by the Federal Bureau of Investigation (FBI) on 23 April 1976. However, the record does not reflect that any disciplinary action was taken for this period of UA totalling 328 days.




On 17 May 1976 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the three periods of UA totalling 227 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 your commanding officer was directed to issue you an other than honorable discharge by reason of the good of the service. 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 19 May 1976 you were issued an other than honorable discharge.
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth, passage of time, post service conduct, and assertion that you were told that your discharge would be upgraded six months after your separation. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive and 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 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 submitted 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 PFE IFFER   
Executive Director






2

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