DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 |
TIR
Docket No: 9339-07
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 13 July 1972 at age 17 and
served without disciplinary incident until 1 May 1973, when you
were convicted by special court-martial (SPCM) of two
specifications of conspiracy to extort $10,000, extortion of
$500, and wrongful use of marijuana. You were sentenced to
confinement at hard labor for three months, reduction to paygrade
E-1, and $525 forfeiture of pay.
On 5 November 1974 you began a period of unauthorized absence
(UA) that was not terminated until you were apprehended by on 25
February 1975. As a result, on 1 April 1975, you submitted a
written request for an other than honorable discharge in order to
avoid trial by court-martial for the foregoing 112 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. Subsequently, 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 16 April
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, post service conduct, character references, and
desire to upgrade your discharge so that you may obtain veterans’
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 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. 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,
W. DEAN PFET
Executive Dire¢t
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