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NAVY | BCNR | CY2007 | 07268-07
Original file (07268-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 SMW
 Docket No: 7268-07
10 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 9 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.
On 15 September 1977, you enlisted in the Navy at age 17. On 11 May 1978, you had nonjudicial punishment for absence from your appointed place of duty, two instances of failure to obey a lawful order, and dereliction in the performance of your duties. During the period 9 November 1978 to 15 February 1979, you were in an unauthorized absence (UA) status on three occasions totaling about 68 days. On 28 February 1979, you received a medical evaluation during which you stated that you were UA because your mother was suffering from domestic abuse. The evaluation found no evidence of psychosis. On
8 March 1979, you began a 1,267 day period of UA that ended on
26 August 1982, when you were apprehended by civilian authorities on charges of driving under the influence of alcohol. On 17 October 1982, you began another UA that ended on 8 November 1982, a period of about 22 days.




Based on the information currently contained in the record, it appears that you subsequently requested an other than honorable (0TH) discharge to avoid trial by court-martial for five instances of UA totaling 1,357 days. At that time, you would have consulted with counsel and acknowledged the consequences of receiving such a discharge. Apparently, the separation authority approved your request for an 0TH discharge. On 12 November 1982, you were separated with an 0TH discharge for the good of the service to avoid trial by court-martial. 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.
The Board, in its review of your entire record, carefully considered all potential mitigation, such as your youth. The Board also considered your contention that personal problems may have attributed to your misconduct. Nevertheless, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge due to the seriousness of your misconduct, specifically, more than 45 months of total UA. Furthermore, 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. Regarding your contention, personal problems do not excuse misconduct. Finally, the Board concluded that you received the benefit of your bargain with the Navy when your request for discharge was granted and you 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.
You may request a copy of your DD Form 214 by submitting the enclosed SF 180 to the address set forth on the form.
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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