DEPARTMENT OF THE NAVY |
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 CRS
Docket No: .5838-06
22 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 15 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
martial and a special court-martial. The offenses included
unauthorized absences totaling five days, assault on three
occasions, disrespect, and breaking restriction on six occasions.
On 29 July 1971 you were convicted by civil authorities of
trespassing. The court sentenced you to a two year period of
informal probation. Subsequently, you received a second
nonjudicial punishment and were convicted by a second summary
court-martial and a second special court-martial. The offenses
included attempted theft from a Marine, theft of $130 from a
Marine, disrespect, communicating a threat to kill, assault,
breaking restriction, absence from your appointed place of duty,
and failure to obey a lawful order.
On 20 October 1973 you were convicted by civil authorities of
burglary of a post office on 20 July 1973 at Camp Pendleton. The
court sentenced you to confinement for six months, a fine of
$388, and probation for three years. On 23 October 1973 the
record shows that you were in the hands of civil authorities. It
appears that you were released from civil confinement on 22
September 1974, and immediately became an unauthorized absentee.
You were declared a deserter on 26 July 1974.. On 12 September
1974 your medical records were closed out due to your being a
deserter.
On 13 February 1976 an administrative discharge board recommended
that you be separated with an undesirable discharge by reason of
misconduct due to civil conviction. After review by the
discharge authority, the recommendation for separation was
approved and you were discharged on 12 May 1976 with an
undesirable discharge.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your contention that you
were held beyond your enlistment and that you were not in the |
hands of civil authorities from 1973 to 1976. Nevertheless, the
Board concluded that these factors were not sufficient to warrant
recharacterization of your discharge, due to the seriousness of
the civil conviction for burglary and your six military
disciplinary actions. It is clear that your enlistment would
have ended on 5 August 1973. However, your burglary of a post
office in July 1973 and subsequent incarceration meant that your
enlistment was extended to cover the time lost. Accordingly, you
were not held beyond the expiration of your enlistment.
Additionally, your request to remove the two desertion entries of
12 September 1974 was also denied since you were in a desertion.
status at that time. Finally, even if you were not in the hands
of civil authorities during the entire period from 1973 to 1975,
you were either in the hands of civil authorities or in a
deserter status. 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
Executive D xr
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