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NAVY | BCNR | CY2006 | 00387-06
Original file (00387-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
 WASHINGTON DC 20370-5100



         CRS
                                              Docket No: 387-06
                                                                                           10 October 2006


This is in reference to your application for reconsideration 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 13 September 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 Marine Corps on 19 February 1976. The record reflects that during the period from 26 June 1976 to 10 March 1977, you received seven nonjudicial punishments (NJP’s) . The offenses included absence from your appointed place of duty on two occasions, sleeping on watch on two occasions, disrespect, disobedience of a lawful order on two occasions and assaulting a civilian.
A psychiatric evaluation, conducted on 20 May 1977, diagnosed you with a schizoid personality disorder and recommended your separation. On 31 May 1977 you received an eighth NJP for drunk and disorderly conduct and failure to obey a lawful order.
Subsequently, the record shows you were an unauthorized absentee from 7 to 14 November 1977, 22 December 1977 to 5 January 1978, and 23 January to 25 April 1978, a total of 113 days. Although the request for discharge is not in your record, it appears that you subsequently requested discharge under other than honorable conditions in order to avoid trial by court-martial for these periods 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 your request f or discharge was deemed factually and legally sufficient and, on 12 June 1978, the commanding general directed discharge under other than honorable conditions for the good of the service in order to escape trial. The record also shows that on 28 June 1978 you were so discharged.
In its review of your application the Board carefully weighed all potentially mitigating factors, such as the diagnosed personality disorder and your testimony at the hearing before the Department of Veteran Affairs. The Board also considered your contentions that you should have been discharged after you were diagnosed with the personality disorder; that you became an unauthorized absentee in order to care for your godmother who was sick; and that you became traumatized when you lost your gear. However, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge or a change in the reason for discharge due to your eight NJP’s and especially your request for discharge to avoid trial for unauthorized absences totaling more than three 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, in May 1977, the commanding officer did not abuse his discretion by choosing to return you to full duty despite your diagnosis of a personality disorder. Finally, even if your godmother was ill, you chose to be an unauthorized absentee and then requested discharge instead of facing a court-martial and explaining your actions. 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.





2



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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