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NAVY | BCNR | CY2007 | 05329-07
Original file (05329-07.rtf) Auto-classification: Denied
                           DEPARTMENT OFTHE NAVY
                                     BOARD FOR CORRECTION OF NAVAL RECORDS
          2NAVYANNEX
         WASHINGTONDC2O37O-5100



                  RDZ:ecb
                   Docket No.05329—07
                   14 March 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 12 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.
You enlisted in the Marine Corps on 26 January 1968. During the period from May 1968 to January 1970 you received five non-judicial punishments and one summary court-martial. Your offenses were unauthorized absence, breaking restriction, possessing an unauthorized liberty card, having an unclean rifle, disobedience of a lawful order and failure to go to your appointed place of duty.
Your military record shows that on 25 March 1970 you submitted a written request for an undesirable in order to avoid trial by court-martial for 36 days of authorized absence.
Your record also shows that prior to submitting this request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. The Board found that your request was granted and, 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. On 7 April 1970 you were issued an undesirable discharge. In its review of your application, the Board carefully weighed all potentially mitigating factors, such as your youth.
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 offenses. 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’.
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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