DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
TRG
WASHINGTON DC 20370-5100
Docket No: 10938-07
14 August 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 5 August 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 12 January 1966 at age 18.
During the period from 1 July 1966 to 1 February 1967 you
received a nonjudicial punishment and were convicted by two
summary courts-martial. Your offenses were an unauthorized
absence of about 14 days, disobedience, two instances of
disrespect and disorderly conduct.
On 28 December 1967 you arrived in Vietnam. A general court-
Martial convened on 8 June 1968 and convicted you of assaulting a
corporal, threatening an officer and two instances of being
disrespectful to commissioned officers. The court sentenced you
to reduction to pay grade E-1, forfeiture of all pay and
allowances, confinement at hard labor for nine months and a bad
conduct discharge. Subsequently the bad conduct discharge was
Suspended for a probationary period of six months and on 7
November 1968 you were returned to duty. During the period from
26 November 1968 to 4 June 1969 you participated in support of 15
combat operations. You left Vietnam on 4 June 1969 and arrived
in the United States on 12 June 1969,
On 7 July 1969 you began a period of unauthorized absence which
lasted until you were apprehended on 10 September 1969, a period
of about 65 days.
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 65 day period of
unauthorized absence. 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 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
15 October 1969,
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your youth, limited
education and your contentions that your records, uniforms and
other items were missing, and the command would not grant you the
leave you believed you were entitled to. The Board found that
these factors and contention 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 65 day period of unauthorized absence. The Board
believed that considerable clemency was extended to you when your
request for discharge to avoid trial by court-martial was
approved since, by this action, you escaped the possibility of
confinement at hard labor and a punitive discharge. Further, 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. The Board concluded that your
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.
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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