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NAVY | BCNR | CY2006 | 04706-06
Original file (04706-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 SJN
 Docket No: 04706-06
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 9 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 Marine Corps on 18 January 1974 at age 17. On 4 December 1974 and 22 January 1975 you received nonjudicial punishment (NJP) for disobedience and three instances of failure to go to your appointed place of duty.
On 30 January 1975 you began a period of UA that lasted 426 days and ended on 2 April 1976. On 6 May 1976 you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for this 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.
Your request for discharge was granted and on 4 June 1976 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, time in service, and your contentions as to the reasons for your UA. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your misconduct that resulted in two NJP’s and especially your request for discharge to avoid trial for 14 months 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 Marine Corps when your request for discharge was granted and should not be permitted to change it now. Concerning your contentions, there is no evidence in the record to support them and you submitted no such evidence. Further, even if true, they would not excuse or sufficiently mitigate such a lengthy period of UA. 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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