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NAVY | BCNR | CY2006 | 02351-07
Original file (02351-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100






 SMW
 Docket No: 2351-07
 1 November 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 24 October 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
On 28 September 1972, you enlisted in the Marine Corps at age 17 with parental consent. On 23 March 1973, you reported to Okinawa, Japan for duty. On 30 March and 16 June 1973, you received nonjudicial punishment (NJP) for disrespect and attempting to disarm a sentinel. On 11 July 1973, your company commander stated by letter that you had excellent potential as a Marine and were granted a drug exemption. On 12 July 1973, a psychiatric evaluation diagnosed you as having a sociopathic personality disorder and recommended discharge. It appears that your commanding officer considered the discharge recommendation, but elected not to take any further action.
On 1 September 1973, you requested an undesirable discharge (UD) for the good of the service to avoid trial by court-martial for charges of possession of a K-Bar knife and assault. On 19 September 1973, the separation authority disapproved your request. On 12 October 1973, you were convicted by a special court-martial of assault.
 On 15 March 1974, you departed Okinawa with orders to report to a stateside duty station. On 24 April 1974, you failed to comply with the report date of the orders and began an unauthorized absence (UA) that ended on 20 May 1974, a period of about 25 days. On 20 May 1974, you were counseled regarding your deficiencies and warned that further deficiencies would result in administrative separation.
On 29 May 1974, a psychiatric evaluation stated that you had a history of anti-social behavior and diagnosed you as having a sociopathic personality disorder. On 30 May 1974, you were instructed on the types of discharges. On 10 June 1974, you began another UA that ended on 9 July 1974, a period of about 29 days. On 12 July 1974, a medical evaluation stated that you wanted a no duty chit renewed and felt that your command was playing with you and would not give you your discharge.
On 15 July 1974, your commanding officer initiated administrative separation by reason of unfitness due to frequent discreditable involvement. In connection with this processing, you acknowledged that separation could result in a UD and waived the right to have your case heard by an administrative discharge board (ADB). On 18 September 1974, the separation authority approved the discharge recommendation and directed a UD by reason of unfitness due to frequent discreditable involvement. On 2 October 1974, you were so discharged.
The Board, in its review of your entire record and application, carefully weighed all potential mitigation, such as your youth and desire for a better discharge. The Board also considered your belief that a discharge is upgraded after six months and contention that you should have received a medical discharge. Nevertheless, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge due to the seriousness of your misconduct that continued even after you were warned that further infractions could result in administrative separation. You are advised that there is no provision in the law or regulations that allows for recharacterization of service after six months or due solely to the passage of time. Regarding your contention, there is no evidence in the record of a pending medical discharge. The record does show that several psychiatric evaluations diagnosed you as having a personality disorder and recommended discharge, but such a diagnosis and recommendation does not excuse misconduct. Finally, the Board noted that you waived the right to have your case heard by an ADB, your best opportunity for retention or a more favorable characterization of service. Therefore, the Board concluded that the 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.


2


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

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