DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 602-08
28 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 27 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.
On 27 June 1969, you enlisted in the Marine Corps at age 17
with parental consent. On 19 January 1970, while on legal
hold, you began an unauthorized absence (UA) that ended on
22 January 1970, when you were apprehended by civilian
authorities. On 3 February 1970, you had nonjudicial
punishment (NJP) for the three day period of UA. On
19 February 1970, you began another UA. On 19 March 1970, you
were apprehended by civilian authorities and held pending
charges of rape and unnatural acts, which were later reduced to
carnal abuse and unnatural acts with a child under the age of
16. Based on the information currently contained in the
record, it appears that you subsequently escaped from civil
custody and returned to your command on 21 December 1970, after
being in a UA status for about 305 days. On 1 February 1971,
you were convicted by a special court-martial of the 305 day
period of UA. oOn 19 February 1971, you were released to
Civilian authorities and extradited to the Commonwealth of
Massachusetts for civil action. On 24 March 1971, you were
convicted in civil court of unnatural and lascivious acts with
a child under the age of 16 and sentenced to a year in
confinement.
On 16 June 1971, your commanding officer initiated
administrative separation by reason of misconduct due to a
civil conviction. In connection with this processing, you
acknowledged that separation could result in an undesirable
discharge (UD) and waived the right to have your case heard by
an administrative discharge board (ADB). On 23 July 1971, the
separation authority approved the discharge recommendation and
directed a UD by reason of misconduct due to a civil
conviction. On 2 August 1971, you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potential mitigation, such as your youth.
The Board also considered the letter of recommendation from the
Department of Veterans’ Services and your belief that you
should be granted a recharacterization of service based on your
military service. Nevertheless, the Board concluded that these
factors were not sufficient to warrant recharacterization of
your discharge due to the seriousness of your civil conviction
that resulted in a UD. Furthermore, the Board noted that in
addition to your civil conviction, you had an NJP and were
convicted by a court-martial. The Board also noted that you
waived the right to have your case heard by an ADB, your best
opportunity for retention or a more favorable characterization
of service. Therefore, 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.
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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