DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 8941-07
6 November 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, gitting in executive session, considered your
application on 5 November 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 21 September 1972 at age 17.
About three months later, on 20 December 1972, you were convicted
by summary court-martial (SCM) of a three day period of
unauthorized absence (UA), two specifications of disobedience,
disrespect, failure to obey a lawful order, and drunk on duty.
You were sentenced to confinement at hard labor for 14 days, a
$100 forfeiture of pay, and reduction to paygrade E-1.
On 9 and 27 November 1972 you received nonjudicial punishment
(NJP) for disobedience, two periods of absence from your
appointed place of duty, and insubordination. On 6 February 1974
you received your third NUP for being incapacitated for duty and
insubordination. On 2 March 1974 you received NJP for use of
provoking speech and gestures, drunk and disorderly conduct,
communicating a threat, and assault.
Your record contains a 46 day period of UA from 3 June to 19 July
1974 in which you were declared a deserted. However, the record
does not reflect the disciplinary action taken, if any, for this
misconduct. On 1 October 1974 you began another period of UA
that was not terminated until you were apprehended by civil
authorities on 4 January 1975. As a result, on 28 February 1975,
you submitted a written request for an other than honorable
discharge in order to avoid trial by court-martial for the
foregoing 95 day period of UA. 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. On 10 March 1975
your request was granted and your commanding officer was directed
to issue you an other than honorable discharge by reason of the
good of the service. 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.
On 27 March 1975 you were issued an other than honorable
discharge.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and assertion that your alcohol abuse was the reason
for your misconduct and discharge. It also considered your
assertions that you wanted help with your alcohol problem,
requested retention in the Marine Corps, and was told that your
general discharge had been approved/signed. Nevertheless, the
Board found the evidence and materials submitted were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your frequent and repetitive
misconduct and your request for discharge to avoid trial by
court-martial for a lengthy period of UA from the Marine Corps.
Further, the Board believed that considerable clemency was
extended to you when your request for discharge to avoid trial by
court-martial was approved. Further, the Board concluded that
you received the benefit of your bargain with the Marine Corps
when your request for discharge was granted and you should not be
permitted to change it now. Finally, there is documented
evidence in the record which is contrary to 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 P
Executive Dik
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