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NAVY | BCNR | CY2006 | 03474-06
Original file (03474-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
                   WASHINGTON DC 20370-5100


                                                      SJN
                                                      Docket No: 03474-06
                                                                                           15 September 2006




This is in reference to your application for correction of naval record pursuant to the provisions of Title 10 of t he Uni ted States Codes section

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 12 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy on 11 October 2001 at age 17. On 14 May 2002 you received nonjudicial punishment (NJP) for a 22-day period of unauthorized absence (tJA). On 21 May 2002, a psychiatric examination diagnosed you with an occupational problem and a borderline personality disorder, but found you fit for full duty.
On 18 June 2002 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for going from your appointed place of duty, three specifications of disobedience, possession of drug paraphernalia, fleeing apprehension, possession of marijuana, assault with a vehicle, and breaking restriction. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. Subsequently, your request for discharge was granted and, on 1 August 2002, you
 received an other than honorable discharge in lieu of trial by court-martial. 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 Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and medical problems. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your NJP and especially your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. The Board also concluded that you received the benefit of your bargain with the Navy when your request for discharge was granted and should not be permitted to change it now. 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

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