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NAVY | BCNR | CY2006 | 11186-06
Original file (11186-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
                                                                                          Docket No: 11188-06
                                                                                          1 November 2007



This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10, 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 30 October 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.
You enlisted in the Marine Corps on 21 June 1973 at age 21. You served for a year and eight months without disciplinary incident, but on 3 February 1975, you received nonjudicial punishment (NJP) for an eight day period of unauthorized absence (tJA). During the period from 18 to 25 February 1975, you were in a UA status for seven days. However, the record does not reflect the disciplinary action taken, if any, for this misconduct. On 3 July 1975 you were convicted by summary court-martial (SCM) of a 22 day period of UA and sentenced to a $258 forfeiture of pay and hard labor for 30 days.
On 30 September 1975 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for a 24 day period of UA and failure to obey a lawful order. Prior to submitting this request, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. On 2 October 1975 your request was granted and on 15 October 1975 you received an other than honorable discharge in lieu of 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 and application, carefully weighed all potentially mitigating factors, such as your youth and assertions that you requested discharge under duress and that you were depressed. It also considered your assertion that you were assaulted with a chair but your commanding officer refused to press charges for this assault. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of the seriousness of your misconduct, which resulted in NJP, a court-martial conviction, and your repetitive periods of UA from the Marine Corps, which also resulted in your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. Finally, you received the benefit of your bargain with the Marine Corps 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,


W. DEAN PFEIFFER
Executive Director

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