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NAVY | BCNR | CY2005 | 00847-05
Original file (00847-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                                             SMW
                                                                                  Docket No: 847-05
                                                                                 25 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 24 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.
The Board found you enlisted in the Marine Corps on 2 July 1973 at the age of 17 with parental consent. On 28 January 1974 you began a period of unauthorized absence (UA) that ended 56 days later on 25 March 1974. On 14 May 1974 you were convicted by a summary court-martial of the 56 day period of UA and sentenced to confinement at hard labor for 15 days, $150 in forfeitures of pay, and 40 days of restriction.
The record shows that you were in a UA status on six more occasions, totaling about 43 days, during the period from 25 August to 24 November 1974. On 23 December 1974 you were convicted of the 43 days of UA and two instances of disobedience of a lawful order. The court sentenced you to confinement at hard labor for two months and $150 in forfeitures of pay. On 26 March 1975 you were delivered to civilian authorities for passing about seven bad checks.
The record also shows that you were in a UA status on two more occasions during the period from 16 February to 18 September 1975. On 23 October 1975 you requested a discharge for good of the service to avoid trial by court-martial for these two periods of
UA, totaling about 147 days. You further acknowledged that approval of your request could result in an undesirable discharge. Your record shows that 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. On 4 November 1975 your request was granted and you were discharged on 7 November 1975 with an undesirable discharge. As a result of this action, you were spared the stigma of another court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor.
The Board, in its review of your entire record, carefully considered all mitigating factors, such as your youth and personal problems. However, the Board found the evidence and materials submitted were not sufficient to warrant recharacterjzation of your discharge, given the UA’s that totaled more than six months. The Board believed that considerable clemency was extended to you when the 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 with the Marine Corps when your request for discharge was granted and you 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 PFEIFFER
Executive Director

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