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NAVY | BCNR | CY2007 | 5265-07
Original file (5265-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 SJN
 Docket No: 05265-07
24 March 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 18 March 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 29 September 1976 at age 19. On 5 April 1977, you received nonjudicjal punishment (NJP) for five days of unauthorized absence (tJA). During the period from 31 May 1977 to 6 February 1978, you had three periods of UA totaling 184 days. On 11 February 1978, you submitted a written request for a good of the service discharge in order to avoid trial by court-martial for the UA periods. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.
Your request for discharge was granted and on 28 February 1978 you received an other than honorable discharge for the good of the service in lieu of trial by court-martial. 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.



The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth, overall record of service, the character letters accompanying your application and post service accomplishments. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterjzation of your discharge because of your misconduct that resulted in NJP, charges being preferred to a court-martial for periods of UA totaling about six months, and especially your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. The Board also concluded that you received the benefit of your bargain with the Marine Corps when your request for discharge was granted and 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 PFEIFFER
Executive Director



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