DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMW
Docket No: 9826-06
29 March 2007
This is in reference to your application for correction of your
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 28 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 15 November 1972 you enlisted in the Navy at age 18. During
the period from 24 July 1973 to 11 January 1974 you received two
nonjudicial punishments (NJP's) and were convicted by a summary
court-martial (SCM). Your offenses included insubordination,
failure to obey a lawful order, unlawful sale or disposition of
property, and use and possession of marijuana.
During the period from 23 February to 23 July 1974 you were in an
unauthorized absence (UA) status on two occasions totaling about
132 days. You subsequently requested an undesirable discharge to
avoid trial by court-martial for these records of UA. At that
time, you consulted with counsel and acknowledged the
consequences of receiving such a discharge. On 26 August 1974
the separation authority approved your request for an undesirable
discharge. On 6 September 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. The Board
also considered your contentions that your discharge was based on
a few months of bad conduct, and personal problems contributed to
your misconduct. Nevertheless, the Board found the evidence and
materials submitted were not sufficient to warrant
recharacterization of your discharge due to the repetitive
misconduct, some of which was drug-related. 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 contentions, the record shows that your misconduct began
about eight months after you enlisted and continued for a year,
and there is no evidence in the record to show that personal
problems caused or contributed to your misconduct. But even if
there were such evidence, that would not excuse your misconduct.
Finally, the Board concluded that you received the benefit of
your bargain with the Navy 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,
Executive Dir
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