DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TRG
Docket No: 8509-06
15 February 2008
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 12 February 2008. 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.
You enlisted in the Navy on 27 August 1971 at age 18. you
satisfactorily completed initial training and on 3 December 1971
you reported to your first duty station. During the period from
17 January 1972 to 12 June 1974, you received nonjudicial
punishment on two occasions and were convicted by a summary
court-martial. Your offenses were larceny, conduct to the
prejudice of good order and discipline and signing an official
record with intent to deceive. Subsequently, you were an
unauthorized absentee on two occasions totaling about 535 days.
Subsequently, your mental condition was evaluated and it was
determined based on examination and psychological testing that
you were neither psychotic nor suffering from any other
psychiatric conditions which would render you unable to
distinguish between right or wrong, or incapable of adhering to
the right. It was further determined that there was no evidence
that you suffered from any such condition in the past.
Your military record shows that you submitted a written request
for a discharge under other than honorable conditions in order to
avoid trial by court-martial for the two periods of unauthorized
absence totaling about 535 days. Your record also Shows that
prior to submitting this request, you conferred with a qualified
military lawyer, at which time you were advised of your rights
and warned of the probable adverse consequences of accepting such
a discharge. The Board found that your request was granted on
2 February 1976 and, 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.
You were discharged on 4 February 1976.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your youth, low score
on the aptitude test and contention that in 1994 you were
diagnosed with a brain abscess. You imply that this condition
was present when you were on active duty and was the cause of
your misconduct. The Board found that these factors were not
sufficient to warrant recharacterization of your discharge given
your record of misconduct and especially your request for
discharge to avoid trial for the offenses. In reaching its
decision, the Board was aware that you apparently received a
thorough psychiatric evaluation prior to your discharge which
concluded that you were responsible for your actions. 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 escaped 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 granted and you should not be
permitted to change it now. The Board concluded that your
discharge was proper as issued and no change is warranted.
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,
EAN
Executive
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