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NAVY | BCNR | CY2007 | 02156-07
Original file (02156-07.rtf) Auto-classification: Denied
                 

                  TRG
                  Docket No: 2156-07
                  5 December 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 27 November 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy on 11 October 2001 at age 17. On 13 March 2003, you received nonjudicial punishment for a short period of unauthorized absence, two instances of disobedience and theft. The punishment imposed included restriction, extra duty and a suspended reduction in rate. Your DD Form 214 indicates that you were an unauthorized absentee from 22 August 2003 to 10 October 2003, a period of about 48 days.
The discharge package is not filed in your service record. However, the reason for discharge entered on your DD Form 214 shows that you submitted a written request for a discharge under other than honorable conditions in order to avoid trial by court-martial apparently for the 48 day period of unauthorized absence (tJA).
Regulations required that prior to submitting this request, you must have conferred with a qualified military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. When the discharge authority approved your request, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. You were discharged under other than honorable conditions on 26
                   November 2003.
In its review of your application, the Board carefully weighed all potentially mitigating factors, such as your youth and desire for further service. The Board found that these factors were not sufficient to warrant recharacterization of your discharge given your record of misconduct and especially your request for discharge to avoid trial for the UA offense. 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. Further, the Board concluded that you received the benefit of your bargain when your request for discharge was granted and you should not be permitted to change it now. The Board concluded that your discharge was proper as issued and no change is warranted.
Regulations require the assignment of an RE-4 reenlistment code when an individual is discharged for the good of the service to avoid trial by court-martial. Since you have been treated no differently than others discharged for that reason, the Board could not find an error or injustice in the assignment of the RE-4 reenlistment code.
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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