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NAVY | BCNR | CY2007 | 03715-07
Original file (03715-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 TJR
 Docket No: 3715-07
11 December 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 11 December 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 Navy on 29 February 2000 at age 22. During the period from 4 to 8 January 2001 you were in an unauthorized absence (UA) status for five days. Although you were retained on duty and did not receive disciplinary action for this period of UA, it was not an excused period of absence. Subsequently, you were warned that any further disciplinary infractions would result in disciplinary action. Nonetheless, on 1 August 2001, you were convicted by summary court-martial (SCM) of a 35 day period of UA and sentenced to confinement for 30 days and a $250 forfeiture of pay.
On 13 November 2002 you began a period of UA that was not terminated until 23 April 2004. As a result, you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for this period of UA totalling 527 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 6 May 2004 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 assertion that two periods of your UA were forgiven and/or excused, and therefore should be removed from your record. Nevertheless, the Board concluded this factor is not sufficient to warrant removal of lost time/UA from your record because there is documented evidence in the record which is contrary to your assertion. Furthermore, even though you did not receive disciplinary action for one of the periods of UA, it does not mean that the UA was forgiven or excused. Finally, 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 Navy 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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