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NAVY | BCNR | CY2007 | 02401-07
Original file (02401-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O370-5100


                  TJR
                                                                                          Docket No: 2401-07
                                                                                          5 March 2008








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 4 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 28 December 1978 at age 19 and served without disciplinary incident until 13 June 1979, when you received nonjudicial punishment (NJP) for disobedience, resisting arrest, assault, and urinating on deck. The punishment imposed was a $400 forfeiture of pay and correctional custody for 30 days. Shortly thereafter on 18 June 1979 you began a period of unauthorized absence (UA) that was not terminated until you were apprehended by civil authorities on 5 July 1979 and charged with driving while intoxicated and driving without a valid license. On 6 August 1979 you began another period of UA. During this period of UA you were apprehended by civil authorities for possession of a stolen vehicle. A trial date of 10 December 1979 was set for this charge, but you failed to show. Subsequently, on 7 February 1980, the latter period of UA was terminated when you were again apprehended by civil authorities.
On 13 March 1980, you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the two periods of UA totalling 202 days. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. Subsequently, your request for discharge was granted, and on 3 April 1980 you received an other than honorable discharge in lieu of trial by court-martial. As a result, 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, the passage of time and your desire to upgrade your discharge. it also considered the character reference letters provided in support of your case. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of the seriousness of your lengthy repetitive periods of UA, 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. The Board also concluded that 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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