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NAVY | BCNR | CY2006 | 09653-06
Original file (09653-06.rtf) Auto-classification: Denied

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


 SMW
Docket No: 9653-06
15 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-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 14 March 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 January 1972 you enlisted in the Marine Corps at age 17 with parental consent. On 15 August 1973 you began a period of unauthorized absence (UA) that ended on 20 February 1974, a period of about 189 days. On 3 April 1974 you requested an undesirable discharge for the good of the service to avoid trial by court-martial for the 189-day UA. At that time, you consulted with counsel and acknowledged the consequences of receiving such a discharge. On 15 April 1974 your request for an undesirable discharge was approved by the separation authority. On
16 April 1974 you were separated with an undesirable discharge for the good of the service to avoid 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, carefully considered all mitigating factors, such as your youth and period of foreign service. The Board also considered your contention that civil -charges that were brought up against you during the UA were later dismissed. Nevertheless, the Board found the evidence and materials submitted were not sufficient to warrant recharacterization of your discharge due to the seriousness of your misconduct, specifically, a UA that exceeded six months. Furthermore, 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. Regarding your contention, although there is no evidence of civil charges in your record, a report from the Federal Bureau of Investigation (FBI) shows that charges of burglary and larceny were dismissed on 23 April 1974, but you were convicted of robbery and committing a crime while armed. The FBI report also shows that you have had numerous other convictions since discharge. Finally, the Board concluded that you received the benefit of your bargain with the Marine Corps when your request for discharge was granted and you 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,




W. DEAN PFEIFFER
          Executive Director


















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