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NAVY | BCNR | CY2006 | 10496-06
Original file (10496-06.rtf) Auto-classification: Denied
                                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
                                    WASHINGTON DC 20370-5100

CRS
 Docket No: 10496-06
4 April 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 19 March 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.
The Board found that you enlisted in the Marine Corps on 1 May 1967. A summary court-martial convened on 27 September 1968 and found you guilty of an unauthorized absence of 38 days. The court sentenced you to confinement at hard labor for 20 days and reduction in rank. On 21 March 1969, a special court-martial found you guilty of unauthorized absences of a total duration of 43 days, failure to obey a lawful order, escaping from confinement, and breaking restriction. The court sentenced you to confinement at hard labor for six months, forfeiture of $68.00 pay per month for six months, and a bad conduct discharge, which was suspended. As a result of your unauthorized absence from 26 May 1969 to 13 June 1969, the suspension was vacated. You were separated from the Marine Corps with a bad conduct discharge on 19 June 1970, upon the completion of appellate review of your conviction and sentence. On 16 April 1975 the Naval Discharge Review Board (NDRB) upgraded your discharge to a general discharge, and changed its basis to the convenience of the government, based on its determination that the vacation action took place more than six months after the execution of the bad conduct discharge was suspended.


The Board concluded that the evidence in support of the NDRB’s
 finding concerning the vacation of the suspended discharge is equivocal, as your record indicates that the discharge was suspended on two different dates, 21 March 1969 and 5 May 1969, the date of trial and of the general court-martial convening authority’s action, respectively. The former date is of questionable validity, as it is very unlikely that a verbatim transcript of trial was prepared, the transcript authenticated by the military judge, the sentence approved and partially suspended by the convening authority, and the record forwarded to the general court-martial convening authority for action all on the day the trial was conducted. It is more likely that the convening authority’s action was taken on 5 May 1969, which is cited in the vacation action, is correct. If that date is correct, the vacation action taken on 6 November 1969 was timely, because the period of suspension was extended to 23 November 1969 as a result of your absence without authority from 26 May to 12 June 1969.
The Board did not accept your contention to the effect that you should have been separated or retired by reason of physical disability, as there is no indication in the available records that you were unfit for duty by reason of physical disability at the time of your discharge. With regard to your request for a fully honorable characterization of service, the Board noted that your conduct mark average of 2.7 is well below the 4.0 average required for an honorable discharge.
In view of the foregoing, 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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