DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 11342-07
19 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 18 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 6 February 1973 at age 19 and
served without disciplinary incident until 20 November 1973, when
you received nonjudicial punishment (NJP) two periods of absence
from your appointed place of duty. On 6 December 1973 you
received NUP for absence from your appointed place of duty and
were awarded a $100 forfeiture of pay and restriction and extra
duty for seven days.
During the period from 26 March to 18 May 1974 you received NJP
on three other occasions for disturbing the peace by making
excessive noise in the barracks, two specifications of failure to
obey a lawful order, insubordination, and failure to go to your
appointed place of duty.
On 25 June 1974 you submitted a written request for an other than
honorable discharge in order to avoid trial by court-martial for
the nine periods of failure to go to your appointed place of
duty, assault, and disobedience. 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 5 August
1974 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 9 August 1974 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, desire to upgrade your discharge, and assertion that
you were not properly advised regarding the meaning and
consequences of your discharge. It also considered your
assertion that because you did not question authority, you signed
the discharge papers as you were told. 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 and frequent misconduct and your
request for discharge to avoid trial by court-martial for these
offenses. 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. Finally, the record
contains documented evidence that is contrary to your assertions.
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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