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NAVY | BCNR | CY2006 | 09145-06
Original file (09145-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
         WASHINGTON DC 2O37O -5 1OO


                  CRS
 Docket No: 9145-06
16 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 10 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 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 1 June 1972. The record reflects that on 12 December 1972 you received nonjudicial punishment for an unauthorized absence of seven days. Subsequently, you were an unauthorized absentee from 24 February 1973 to 18 June 1974, a total of 474 days. You were also an unauthorized absentee from 11 July to 29 September 1974, a total of 78 days. On 11 October 1974 you received a second nonjudicial punisliment for an unauthorized absence of 20 days.
It appears that you then requested an undesirable discharge in order to avoid trial by court-martial for the two periods of absence totaling 552 days, for which no disciplinary action was taken. The Board presumed that prior to submitting this request, and in accordance with applicable directives, 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. It also appears that your request was granted 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 of confinement at hard labor. The record clearly shows that on 20 November 1974 you received an undesirable discharge for the good of the service to escape trial.





In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth. However, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge given your request for discharge to avoid trial for unauthorized absences totaling more than 18 months. 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 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. ZSALMAN
 Acting Executive Director















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