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NAVY | BCNR | CY2006 | 05363-06
Original file (05363-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


                                                      CRS
                                                                                           Docket No: 5363-06
                                                                                          26 October 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 11 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.
The Board found that you enlisted in the Marine Corps on 4 November 1968 after three years of prior active Army service. You received two nonjudicial punishments and were convicted by a special court-martial. Your offenses included an unauthorized absence of three days, failure to obey a lawful on two occasions, assaulting an officer, and communicating a threat. A psychiatric evaluation conducted on 24 January 1970 diagnosed you as having a personality disorder.
On 11 February 1971 you submitted a written request for an undesirable discharge in order to avoid trial for an unauthorized absence of 91 days. Prior to submitting this request you conferred with a qualified military lawyer who advised you of your rights and warned of the probable adverse consequences of accepting such a discharge. Your request was granted and you received an undesirable discharge on 12 February 1971.
In its review of your application the Board carefully weighed all potentially mitigating factors, such as your service in Vietnam and prior Army service and the contention that you suffered from post traumatic stress disorder (PTSD) rather than a personality disorder, and that the PTSD caused the misconduct for which you requested discharge. The Board believed that considerable clemency was extended to you when your request for discharge to avoid trial by court-martial was approved since, by this action, you avoided the possibility of confinement at hard labor and a punitive discharge. Further, the Board concluded that you received the benefit of your bargain when your request for discharge was approved, and you should not be permitted to change it now. There is no evidence in the record to show that you suffered from PTSD while in the Marine Corps. Additionally, even if you did have symptoms of PTSD during your period of active duty, you have not demonstrated that you did not know right from wrong and were unable to adhere to the right, or that the symptoms of the claimed disorder caused you to absent yourself without authority. 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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