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NAVY | BCNR | CY2006 | 09598-06
Original file (09598-06.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100




 SMW
 Docket No: 9598-06
1 March 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-me mb er panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 28 February 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.
On 25 July 1985 you enlisted in the Navy at age 18 and served without incident for more than 18 months. But on 10 February and 15 June 1987 you received nonjudicial punishment (NJP) for disobedience of a lawful order and unlawful possession of a dangerous weapon.
On 3 October 1988 you began a period of unauthorized absence (UA) that ended on 12 December 1988, a period of about 70 days. On 14 December 1988 you were referred to trial by special court-martial (SPCM) for the UA. However, on 5 January 1989 you consulted qualified legal counsel and entered into an agreement with your commanding officer (CO) to accept trial by summary court-martial (SCM) and not to contest a recommendation for an other than honorable discharge. On 6 January 1989 you were convicted by SCM of the 70-day UA and two instances of missing the movement of your ship.
On 31 January 1989 your CO initiated administrative separation by reason of misconduct due to commission of a serious offense, and pattern of misconduct, and recommended an other than honorable discharge. In connection with this Processing, you acknowledged the consequences of such a discharge and waived the right to have your case heard by an administrative discharge board (ADB). On 21 February 1989 the separation authority approved the recommendation for separation and directed an other than honorable discharge by reason of misconduct due to commission of a serious offense. On 23 February 1989 you were so discharged.
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth. The Board also considered your contentions that you went UA to care for a family member, and were led to believe that your discharge would be automatically upgraded after six months. Nevertheless, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge due to the seriousness of your misconduct. Regarding your contention, there is no evidence in the record to show that personal problems caused or contributed to your misconduct, but even if there was such evidence, that would not excuse your misconduct. Furthermore, you should be advised that there is no’ provision in the law or regulations that allows for recharacterization of service due solely to the passage of time. Finally, the Board noted that you waived the right to have your case heard by an ADB, your best opportunity for retention or a more favorable characterization of service. Therefore, the Board concluded that the 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,


                                                                        W. DEAN PFEIFFER
                            Executive Director













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