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NAVY | BCNR | CY2007 | 06661-07
Original file (06661-07.rtf) Auto-classification: Denied
                           BOARD FOR CORRECTION OF NAVAL RECORDS
                                     2 NAVY ANNEX
                   WASHINGTON DC 20370-5100



                                    TRG
                                    Docket No: 6661-07
                                                                         7 April 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 1 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 that the evidence submitted was insufficient to establish the existence of probable material - error or injustice.
You enlisted in the Marine Corps on 25 May 1969 at age 18. Your record is incomplete but it is clear that you served for a period of time in Vietnam and arrived back in the United States on 7 May 1970. On 30 September 1970 you were convicted by a special court-martial of three periods of unauthorized absence totaling about 63 days. The court sentenced you to forfeitures of pay, 60 days restriction and a reduction in grade. Subsequently, you were an unauthorized absentee for about 77 days. On 14 March 1971 you escaped from confinement and then surrendered the next day.
Your military record shows that you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for the unauthorized absence and escape charges. 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 on 21 May 1971 and, as a result of this action, YOU were spared the of a court -martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. You were discharged on 28 May 1971.
 Subsequently, you were issued a clemency discharge based on your completion of alternate service
In its review of your application the Board carefully weighed all Potentially mitigating factors, such as your youth, service in Vietnam and the issuance of a clemency discharge. 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.
Concerning the issuance of a clemency discharge, the Board was aware that it was not issued to allow the receipt of veterans benefits but only to excuse the misconduct which resulted in the underlying adverse discharge. In your case, only recharacterjzation of the undesirable discharge by this Board would do that. The Board concluded that the undesirable 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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