DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 696-08
1 December 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 25 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 Navy on 14 July 1976 at age 22 and served for
a year and five months without incident. However, on 2 December
1977 you began a period of unauthorized absence (UA) that was not
terminated until you were apprehended by civil authorities on 16
November 1979. During this period of UA you were also declared a
deserter.
On 11 January 1980 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for the foregoing period of UA which totalled 721 days. 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 6 March 1980 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 13 March 1980 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
the explanation for your period of UA, and your assertion of
hardship and family problems. Nevertheless, the Board found the
evidence and materials submitted were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your request for discharge to avoid trial by court-martial for
your lengthy period of UA. 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 Navy 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, \
\ Soames
W. DEAN PF
Executive D ctor
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