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NAVY | BCNR | CY2006 | 04664-06
Original file (04664-06.rtf) Auto-classification: Denied

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


 SJN
 Docket No: 04664-06
13 November 2006





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 8 November 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 1 August 1969 at age 18. Your served without incident until 12 July 1971, when you received nonjudicial punishment (NJP) for a nine-day period of unauthorized absence (UA). On 3 August 1972 you were convicted by special court-martial (SPCM) of a 52-day period of ‘UA that ended in your apprehension. You were sentenced to confinement at hard labor, a forfeiture of pay, a reduction in paygrade, and a bad conduct discharge (BCD). The convening authority suspended the execution of the BCD for the period of confinement and six months thereafter. After you were restored to duty you received three additional NJP’s for periods of UA totaling about three days.
The record shows that during the period from 31 May to 12 September 1973 you had five periods of UA totaling 97 days. On 11 October 1973 you requested an undesirable discharge for the
 good of the service in order to avoid trial by court-martial for these periods of UA. 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.
On 29 October 1973 your request for discharge was granted and on 2 November 1973 you received an undesirable discharge for the good of the service 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 time in service. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your misconduct that resulted in four NJP’s and a conviction by SPCM for a lengthy period of UA, and especially your request for discharge to avoid trial for another lengthy period of UA. 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. Finally, you were given an opportunity to earn a better characterization of service when the BCD was suspended and you were restored to duty. However, you failed to take advantage of this opportunity and continued to commit offenses. 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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