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NAVY | BCNR | CY2005 | 10449-05
Original file (10449-05.rtf) Auto-classification: Denied

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

                                             CRS
 Docket No: 10449-05
12 February 2007








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 18 January 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.
The Board found that you reenlisted in the Marine Corps on 9 November 1979 after more than two years of prior active service. On 2 February 1981 you were involved in a fight, during which you were kicked in the head. On 24 March 1981 you received nonjudicial punishment for an unauthorized absence of two days and cashing worthless checks on two occasions.
On 4 November 1982 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for unauthorized absences totaling 119 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, 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 received the other than honorable discharge on 26 November 1982.












In its review of your application the Board carefully weighed all potentially mitigating factors, such as your contention that your kick in the head caused your misconduct. Nevertheless, the Board found these factors were not sufficient to warrant recharacterization of your discharge to avoid trial for unauthorized absences totaling four 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. Finally, there is no evidence that your being kicked in the head caused your misconduct. 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
Copy to:















2

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