DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 8797-07
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, sitting 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 8 July 1975 at age 18. A
month later, on 18 August 1975, you received nonjudicial
punishment (NUP) for failure to obey a lawful order and were
awarded correctional custody for five days and a $50 forfeiture
of pay.
On 22 April 1976 you received NJP for a 23 day period of
unauthorized absence (UA) and were awarded restriction for 60
days, a $50 forfeiture of pay, and reduction to paygrade E-1.
During the period from 28 June to 16 December 1976 you were ina
UA status on two more occasidéns for 163 days and declared a
deserter. On 22 December 1976 you began another period of UA
that was not terminated until you were apprehended by civil
authorities and convicted of automobile theft. Subsequently, you
were released from civil custody but failed to return to your
command. On 28 February 1977 you were apprehended by civil
authorities, thus ending a 62 day period of UA.
On 11 March 1977 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for three periods of UA totalling 225 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
23 March 1977 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 1 April 1977 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 you were having a lot of personal
problems while serving in the Marine Corps. It also considered
your desire to upgrade your discharge so that you may be eligible
for medical benefits. 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 in both the military
and civilian communities, and your request for discharge to avoid
trial by court-martial for your lengthy periods 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 Marine Corps 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.
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,
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