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NAVY | BCNR | CY2006 | 07249-06
Original file (07249-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 SJN
 Docket No: 07249-06
26 January 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 23 January 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 27 September 1982 at age 18. On 19 December 1983 you received nonjudicial punishment (NJP) for disobedience. On 20 June 1984 and 6 February 1985 you were counseled and warned that further misconduct could result in processing for administrative separation due to your frequent involvement with military authorities.
On 8 February 1985 you were convicted by special court-martial (SPCM) of assault and missing movement. You were sentenced to confinement at hard labor and a reduction in paygrade. During the period from 14 June to 27 August 1985 you received three additional NJP’s for two instances of absence from your appointed place of duty, breaking restriction, and disrespect.
On 9 October 1985 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for 65 specifications of unauthorized absence by failing to go to restricted musters, and disrespect. 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. Subsequently, your request for discharge was granted and, on 14 November 1985, you received an other than honorable discharge 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 the four NJP’s and especially your request for discharge to avoid trial. 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. 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,


ROBERT D. ~SALMAN
Acting Executive Director











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