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NAVY | BCNR | CY2006 | 05225-06
Original file (05225-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
                  BOARD FOR CORRECTION OF NAVAL RECORDS
                  2 NAVY ANNEX
          WASHINGTON DC 2O370~5 100
         
         SMW
 Docket No: 5225-06
4 October 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 Nava’ Records, sitting in executive session, considered your application on 3 October 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.
The Board found you enlisted in the Marine Corps on 4 October 1978 at age 17. During the period from 10 August 1979 to 5 May
1980 you received five nonjudicial punishments (NJP’s) . Your offenses included disrespect, two instances of assault, two instances of disobedience of a lawful order, communicating a threat, absence from your appointed place of duty, and resisting apprehension. On 19 November 1979, suspended punishment from the NJP of 17 September 1979 was vacated due to unspecified misconduct. On 25 July 1980 your commanding officer made four service record entries regarding deficiencies in your performance and conduct.
On 9 October 1980 you requested an other than honorable discharge for the good of the service to avoid trial by court-martial on charges of offering violence, ten instances of disobedience of a lawful order, and two instances of disrespect. At this time, you consulted with counsel and acknowledged the consequences of receiving such a discharge. On 14 October 1980, your request was granted, and on 12 December 1980 you were separated with an other than honorable discharge. 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, carefully considered all mitigating factors, such as your youth and desire for veterans’ benefits. Nevertheless, the Board found the evidence and materials submitted were not sufficient to warrant recharacterization of your discharge due to the repetitive misconduct. The Board believed that considerable clemency was extended to you when the 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 with the Marine Corps when your request for discharge was granted and you 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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