DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DC 20370-5100 Docket No: 9570-07
29 December 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 16 December 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 14 April 1967 at age 20.
During your active duty you served in Vietnam and participated in
multiple combat operations and were awarded the Combat Action
Ribbon and the Purple Heart. You were released from active duty
on 6 March 1970 with your service characterized as honorable.
More than eight years later, on 6 December 1978, you enlisted in
the Navy at age 31. On 11 July 1980 you received nonjudicial
punishment for two periods of unauthorized absence totaling about
16 days and missing ship's movement. On 19 March 1981 you -began
a period of unauthorized absence which lasted until you were
apprehended on 1 February 1982, a period of about 319 days.
A special court-martial convened on 7 May 1982 and convicted you
of the 319 day period of unauthorized absence. During the court,
your defense counsel contended that you were having adjustment
difficulties because of your service in Vietnam and pointed out
that a bad conduct discharge might result in the denial of
veterans! benefits and requested a lenient sentence. The
prosecution pointed out that 319 days of absence was a serious
offense and that the psychiatric evaluations suggested an
immature personality but that you were considered responsible for
your actions. After consideration, the military judge sentenced
you to forfeitures of pay, reduction to pay grade E-1, 59 days
confinement at hard labor and a bad conduct discharge. On 17
June 1982 you were released from confinement and were sent on
appellate leave. The bad conduct discharge was issued on 8
September 1982.
In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your prior honorable
service and your counsel's contentions that your defense counsel
during the special court-martial should have had you enter a plea
of not guilty by reason of mental instability and the court
should have requested a complete psychiatric consultation. The
Board found that these factors and contention were not sufficient
to warrant recharacterization of your discharge given your
lengthy period of unauthorized absence. It is clear from the
court-martial record, that you were evaluated and found to be
responsible for your actions and competent to stand trial.
Further, the Board believed that sometime during a 319 day period
of unauthorized absence you had to have made a knowing decision
to remain absent. The military judge considered the mitigating
factors and sentenced you to considerably less than the maximum
sentence of six months confinement at hard labor and less than
the maximum forfeitures. The Board concluded that the discharge
was proper as issued and no change is warranted.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
The Board believes that you are eligible for the full range of
veterans benefits based on your first period of honorable service
and it appears that you are receiving benefits from the
Department of Veterans Affairs (DVA). If you have been denied
any benefits you should appeal that denial under procedures
established by the DVA.
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,
lo wuaXelor!
W. DEAN PFEIN FE
Executive Dite¥tor
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