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NAVY | BCNR | CY2007 | 07091-07
Original file (07091-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
                                     BOARD FOR CORRECTION OF NAVAL RECORDS
                                                      2 NAVY ANNEX
                                              WASHINGTON DC 20370-5100
                                   


                                                      TJR
                                                                                          Docket No: 7091-07
                                                                                          22 May 2008



This is in reference to your application for correction of your
late son’s naval record pursuant to the provisions of Title 10,
United States Code, Section 1552.
A three-mem b er panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 20 May 2008. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Docu m entary material considered by the Board consisted of your application, together with all material submitted in support thereof, your late son’s 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.
Your late son enlisted in the Navy on 24 February 1986 at the age of 18. He served without disciplinary infraction until 31 May 1989 when he began a period of unauthorized absence (UA) that was not terminated until 22 April 1991. on 29 May 1991 he received n onjudicial punishment (NJP) for unspecified offenses and was awarded a reduction to paygrade E-3.
Subsequently your son submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the foregoing period of UA totalling 692 days. His record shows that prior to submitting this request, he conferred with a qualified military lawyer at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge. His request for discharge was granted and his commanding officer was directed to issue him an other than honorable discharge by reason of the good of the service. As a result of this action, he was spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. On 13 June 1991 he was issued an other than honorable discharge.

The Board, in its review of your late son’s entire record and your application, carefully weighed all potentially mitigating factors, such as his youth, period of honorable service, and your assertion of his good post service conduct. it also considered your assertion that your son’s death was the result of his suffering from a traumatic experience which occurred while he was serving in the Navy. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of his discharge because of the seriousness of his lengthy period of UA, which resulted in his request for separation to avoid trial by court-martial. The Board believed that considerable clemency was extended to your son when his request for discharge to avoid trial by court-martial was approved. Further, the Board concluded that he received the benefit of his bargain with the Navy when his request for discharge was granted and you should not be permitted to change it now. Finally, there is no evidence in the record, and you submitted none, to support your assertions. 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 PF EIFFER
         Executive Director














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