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NAVY | BCNR | CY2005 | 06648-05
Original file (06648-05.rtf) Auto-classification: Denied

                           DEPARTMENT OF THE NAVY
 BOARD FOR CORRECTION OF NAVAL RECORDS
                            2 NAVY ANNEX
                                     WASHINGTON DC 20370-51 00      


                                                                                 CRS
                                                                                 Docket No: 6648-05
                                                                                 5 May 2006







 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 3 May 2006. 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 1 October 1978. The record shows you were an unauthorized absentee from 2 April 1979 to 22 July 1980, a total of 470 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 15 August 1980 you received an other than honorable discharge for the good of the service to escape trial.
In its review of your application the Board carefully weighed all potentially mitigating factors, such as the contention that you


                  were to-id that the discharge would be upgraded after six months. 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 more than 15               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. In this regard, no law or regulation            provides for upgrading a discharge based solely on the passage of time. 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 PFEIFFER
 Executive Di rector
















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