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NAVY | BCNR | CY2005 | 08635-05
Original file (08635-05.rtf) Auto-classification: Denied

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


 TRG
 Docket No: 8635-05
 22 February 2007





This is in reference to your application f or 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 13 February 2007. 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.
You enlisted in the Navy on 7 September 1976 at age 19. During the period from 16 June 1977 to 4 January 1978, you received nonjudicial punishment on three occasions. Your offenses were a short period of unauthorized absence, failure to go to restricted musters, two instances of disobedience, breaking restriction, possession of marijuana, drunk and disorderly conduct and possession of another Sailor’s identification card.
On 15 July 1978 you began a period of unauthorized absence which lasted until you surrendered on 24 September 1979’, a period of about 439 days. Your military record shows that you submitted a written request for a discharge under other than honorable conditions in order to avoid trial by court-martial for this period of unauthorized absence. Your record also 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. The Board found that your request was granted on 22 December 1979 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. You were discharged on 15 January 1980.









In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth, the passage of more that 27 years since your discharge, and the contention that you were improperly ordered to work where asbestos was present. The Board found that these factors were not sufficient to warrant recharacterization of your discharge given your lengthy period of unauthorized absence and especially your request for discharge to avoid trial for the offenses. 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 you should not be permitted to change it now. The Board concluded that your discharge was proper as issued and no change 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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