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NAVY | BCNR | CY2007 | 09494-07
Original file (09494-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


TRG
         Docket No: 9494-07
         5 June 2008







This is in reference to your application for correction of your naval
record pursuant to the provisions of title 10 of the 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 28 May
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 that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.
You enlisted in the Marine Corps on 9September 1987 at age 18. During
the period from 8 December 1988 to 24 July 1989 you received three
nonjudicial punishments for theft, attempting to commit larceny,
sleeping on post and absence from your appointed place of duty and a
short period of unauthorized absence.
On 8 September 1989 you successfully completed inpatient treatment for
alcohol dependence. On 5 October and 28 December 1989, you were
counseled for being late for work and that you were considered to be an
alcohol treatment failure. In April 1990 you were an unauthorized
absentee for about 18 days and missed movement of your unit.
Your military record shows that you submitted a written request for a discharge under other than honorable conditions in order to avoid trial by court-martial for the 18 day period of unauthorized absence and missing movement. Your record also shows that 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. The Board found that your request was granted on 25 June 1990 and, 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. You were discharged on 7 December 1990.
In its review of your application, the Board carefully weighed all potentially mitigating factors, such as youth and contention that you were not informed that you would receive a discharge under other than honorable conditions. The Board found that these factors were not sufficient to warrant recharacterization of your discharge given your record of misconduct and especially your request for discharge to avoid trial for the offenses. The Board was aware that the subject line of the document you signed requesting discharge states that it was a request for discharge under other than honorable conditions. Further, that characterization of service is mentioned in several paragraphs of the letter. Accordingly, it is clear that you knew or should have known that you were requesting discharge under other than honorable conditions.
The Board believed that considerable clemency was extended to you when your request for discharge to avoid trial by court-martial was approved. The Board concluded that you received the benefit of your bargain 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 PFIEFFER
Executive Director

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