DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJIR .
Docket No: 8742-07
27 October. 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 21 October 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 reenlisted in the Marine Corps on 14 June 1976 after nearly
four years of prior honorable service. You continued to serve
without disciplinary incident until 27 June 1977, when you
received nonjudicial punishment (NUP) for two periods of absence
from your appointed place of duty. On 13 November 1977 you
received NUP for two periods of unauthorized absence (UA)
totalling nine days and making a false official statement.
Shortly thereafter, on 29 November 1977, you began a period of UA
that was not terminated until you were apprehended by civil
authorities on 20 July 1978. During this period of UA you were
also declared a deserter.
On 9 August 1978 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for the foregoing period of UA which totalled 233 days. 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 21 August 1978 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 28 August 1978 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 prior honorable service, the explanation for your periods of
UA, and assertions of undiagnosed mental problems and
experiencing emotional problems while serving in the Marine
Corps. It also considered your desire to upgrade your discharge
so that you may receive medical and mental health care.
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 your lengthy period of UA. Further,
the Board believed that considerable clemency was extended to you
when your request for discharge to avoid trial by court-martial
was approved. 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.
You may be eligible for veterans’ benefits which accrued during
your first period of service. Whether or not you are eligible
for benefits is a matter under the cognizance of the Department
of Veterans Affairs (DVA). If you have been denied benefits, you
should appeal that denial under procedures established by the
DVA.
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,
\pQeas
W. DEAN PFET
Executive Di
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