DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 605-08
5 September 2008
Deanagynilliiiaiie*
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 3 September 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.
On 7 February 1969, you enlisted in the Marine Corps at age
17 with parental consent. On 3 October 1969, you began an
unauthorized absence (UA) that ended on 12 November 1969, a
period of about 40 days. On 24 November 1969, you had
nonjudicial punishment for the 40 day period of UA. On
23 December 1969, you reported to Vietnam for duty as a
wireman and radio operator. On 30 March 1970, a letter of
continuity stated that your job performance was good and that
although your conduct was not of the best nature, no official
action had been taken. On 30 April 1970, another letter of
continuity stated that you continued to do well in your duty
performance, but lacked initiative and required supervision.
On 20 May 1970, you received a psychiatric evaluation after
being involved in a fight the previous night. The evaluation
stated that you were impulsive, lacked control, had some
sociopathic qualities, but was legally responsible for your
actions. On 8 June 1970, you were convicted by a special
court-martial of wrongful appropriation of government property
and assault. On 12 October 1970, you requested an undesirable
discharge (UD) for the good of the service to avoid trial by
court-martial for charges of unauthorized possession of a
government .45 caliber weapon and assault with a knife by
making a movement to cut another Marine. At that time, you
consulted with counsel and acknowledged the consequences of
receiving such a discharge. On 21 October 1970, the separation
authority approved your request for a UD. On 30 October 1970,
you departed Vietnam. On 5 November 1970, you were separated
with a UD for the good of the service to avoid trial by court-
martial. As a result of this action, you were spared the
stigma of another 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, carefully
considered all potential mitigation, such as your youth and
service in Vietnam. Nevertheless, the Board concluded that
these factors were not sufficient to warrant recharacterization
of your discharge due to the seriousness of your misconduct.
Furthermore, the Board believed that considerable clemency was
extended to you when your request for discharge to avoid trial
by court-martial was approved. The Board also 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. 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 P R
Executive Did or
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