DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 8408-06
10 July 2007
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, 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 10 July 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 Navy on 5 August 1991 at age 19 and served
for two years and six months without disciplinary incident.
However, on 31 January 1994 you began a period of unauthorized
absence (UA) and were declared a deserter. On 3 February 1994, a
drug and alcohol report (DAAR) stated that your urine sample,
which was collected during the period from 18 to 28 January 1994,
tested positive for marijuana.
On 27 March 1994, while in the foregoing UA status, you were
apprehended by civil authorities. As a result, on 18 April 1994,
you were convicted by civil authorities of driving while
intoxicated and held in confinement with a projected release date
of 27 November 1995. However, on 8 July 1994, you were released
to military custody, thus terminating your period of UA.
On 10 August 1994 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for the foregoing period of UA totalling 103 days. Prior to
submitting this request, you conferred with a qualified military
lawyer, were advised of your rights, and warned of the probable
adverse consequences of accepting such a discharge. On 12 August
1994 your request was granted. On 26 August 1994, as evidenced
by the 3 February 1994 DAAR, you received nonjudicial punishment
(NJP) for wrongful use of marijuana. The punishment imposed was
a $934 forfeiture of pay, restriction and extra duty for 45 days,
and reduction to paygrade E-2.
During the period from 4 to 14 September 1994 you were referred
for a medical evaluation because you were found drunk while on
restriction. Subsequently, you were diagnosed as alcohol
dependent and recommended for rehabilitation at a veterans’
administration facility.
On 26 October 1994 you received an other than honorable discharge
in lieu of trial by court-martial in accordance with your 10
August 1994 request. 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 request to upgrade your discharge. It also
considered your assertion that you should have received a medical
discharge because of your drug and alcohol problems, which is the
sole reason for your discharge. The Board further considered the
character reference letters and certificates submitted in support
of your case. Nevertheless, the Board concluded these factors
were not sufficient to warrant recharacterization of your
discharge because of your lengthy period of UA from the Navy
which resulted in your request for discharge, and the seriousness
of your drug and alcohol related misconduct in both the military
and civilian communities. 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 Navy 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,
Lo Dens
W. DEAN PFE
Executive Di or
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