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NAVY | BCNR | CY2006 | 00840-06
Original file (00840-06.rtf) Auto-classification: Denied
DEPARTMENT OF’ THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
         WASHINGTON DC 2O37O- 5 1OO

                  CRS
 Docket No: 840-06
20 January 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 enlisted in the Marine Corps on 9 February 1977. At that time, your father and your recruiter certified that your birth date was 27 February 1959. The record reflects that you received four nonjudicial punishments. The offenses included failure to obey a lawful order, willful disobedience of a lawful order, failure to attend an alcohol abuse class, and disrespect.
on 29 June 1978 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for assaulting a superior with a fist, assaulting a superior with your fist and feet, willful disobedience of a lawful order, disrespect to two people, two instances of damaging military property, hitting a sergeant in the fact with your fist, and impersonating a corporal. 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 25 August 1978.









In its review of your application the Board carefully weighed all potentially mitigating factors, such as your contention that since you enlisted at the age of 15 your misconduct should be excused. Nevertheless, the Board found these factors were not sufficient to warrant recharacterizati o n of your discharge given your request for discharge to avoid trial for serious 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 should not be permitted to change it now. In this regard, the Board noted that you submitted a birth certificate showing your date of birth as 6 March 1961. However, in view of all the evidence in your record, the Board concluded that you were 17 years old when you enlisted in the Marine Corps. Even if you were only 15 at the time of enlistment, you fraudulently enlisted in the Marine Corps by concealing your true age. Finally, you clearly were over 17 years of age when you committed the offenses that resulted in your discharge. 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,



 ROBERT D. SALMAN
Acting Executive Director









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