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NAVY | BCNR | CY2005 | 07427-05
Original file (07427-05.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

                  TJR
                                                                                          Docket No: 7427-05
                                                                        11 May 2006








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 9 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 28 March 1968 at age 18. You served for one year and four months without disciplinary incident, but on 9 July and again on 2 September 1969 you received nonjudicial punishment (NJP) for two periods of absence from your appointed place of duty.
On 25 August 1970 you were convicted by special court-martial (SPCM) of two periods of unauthorized absence (UA) totalling 260 days. You were sentenced to confinement at hard labor for five months, a $200 forfeiture of pay, and reduction to paygrade E-1. A portion of the confinement and forfeitures was suspended for six months.
On 30 November 1970 you began a period of UA that was not terminated until you were apprehended by civil authorities on 11 February 1971. During this period of UA you were also declared a deserter. As a result, on 5 March 1971, you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for the foregoing period of UA totalling 74 days. Prior to submitting this request, you conferred with a qualified.










 military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. On 11 March 1971 your request for discharge was granted and on 22 March 1971 you received an other than honorable discharge in lieu of trial by court-martial. 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 Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and assertion that there was only one incident of misconduct which lead to your discharge. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive misconduct which resulted in two NJPs, a court-martial conviction, and especially your request for discharge for a lengthy period of UA. 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 also 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
2

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