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NAVY | BCNR | CY2007 | 05649-07
Original file (05649-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-Si 00


 TJR
 Docket No: 5649-07
9 April 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 8 April 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 6 August 1975 at age 17 and served without disciplinary incident until 18 March 1976, when you received nonjudicial punishment (NJP) for absence from your appointed place of duty. On 20 December 1976 you were counselled regarding deficiencies in your performance, specifically, your failure to obey a lawful order.
During the period from 27 December 1976 to 19 April 1977 you were in an unauthorized absence (UA) status on two occasions. As a result, on 27 April 1977, you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for the two periods of UA totalling 112 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 1977 you received an other than honorable discharge in lieu of trial by court-martial, and as such 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 desire to upgrade your discharge. It also considered your assertions that you were told that your discharge would be automatically upgraded and that you could enlist in another branch of the armed forces four years after your discharge. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of the seriousness of your 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. There is no evidence in the record, and you submitted none, to support your assertions. Finally, no discharge is automatically upgraded due solely to the passage of time. 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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