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NAVY | BCNR | CY2007 | 07927-07
Original file (07927-07.rtf) Auto-classification: Denied
                           DEPARTMENT OF THE NAVY
                           BOARD FOR CORRECTION OF NAVAL RECORDS
                                   2 NAVY ANNEX
                                    WASHINGTON DC 20370-5100


TJR
 Docket No: 7927-07
2 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 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 3 April 1961 at age 17. You served for nearly a year without disciplinary incident, but on 17 and 22 March 1962, you received nonjudicial punishment (NJP) for sitting on post and destroying government property by altering an identification card. On 23 October 1962 you were convicted by summary court-martial (SCM) of failure to go to your appointed place of duty, misbehavior of a sentinel, and assault. You were sentenced to confinement at hard labor for one month and a $60 forfeiture of pay.
On 18 June 1963 you received NJP for a one day period of UA and were awarded a $24 forfeiture of pay. Less than a year later, on 5 June 1964, you were convicted by SCM of two periods of UA totalling seven days, absence from your appointed place of duty, breaking restriction, and failure to obey a lawful order. You were sentenced to confinement at hard labor for 30 days, a $70 forfeiture of pay, and reduction to paygrade E-l. Shortly
 thereafter, on 1 July 1964, you received NJP for failure to possess a liberty pass and absence from your appointed place of duty. The punishment imposed was restriction for 12 days.


On 17 October 1964 you were apprehended by civil authorities and held in custody until 19 October 1964. On 16 November 1964 you were convicted by civil authorities of statutory rape and sentenced to confinement for six months and probation for three years.
On 16 November 1964, while in the custody of civil authorities, you were notified of pending administrative separation action by reason of misconduct due to civil conviction/moral turpitude. After consulting with legal counsel you elected to present your case to an administrative discharge board (ADB). On 10 February 1965 an ADB recommended an undesirable discharge by reason of misconduct due to civil conviction. Your commanding officer also recommended an undesirable discharge by reason of misconduct. Subsequently, the discharge authority approved these recommendations and directed an undesirable discharge, and on 15 March 1965, while in the custody of civil authorities, you were so discharged.
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth, post service conduct, and the passage of time. It also considered your assertion of being discharged without due process or proper legal representation. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of the seriousness of your repetitive misconduct, which resulted in four NJPs, two court-martial convictions, and conviction by civil authorities. Further, no discharge is automatically upgraded due solely to the passage of time or an individual’s good post service conduct. Finally, there is sufficient evidence in the record which is contrary to your assertions of being discharged without due process or proper legal representation. 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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