DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
"WASHINGTON DC 20370-5100
SMS
Docket No: 1837-08
9 October 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 8 October 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 30 June 1976, you enlisted in the Marine Corps at age
17 with parental consent. On 3 December 1976, you completed
Infantry Training School, were assigned primary military
occupational specialty 0341, and issued orders to report for
duty at Marine Barracks, Seal Beach no later than
15 December 1976. However, you failed to report and began an
unauthorized absence (UA) that ended on 25 January 1977, a
period of about 41 days. You were subsequently assigned to an
infantry unit at Camp Pendleton. On 28 February 1977, you were
convicted by a special court-martial of the 41 day period of
UA. On 21 June 1977, you had nonjudicial punishment for
possession of marijuana. On 11 July 1977, you requested a
hardship discharge, but your request was subsequently denied.
On 16 September 1977, you began a UA that ended on
26 August 1978, a period of about 237 days. On
8 September 1978, you requested an other than honorable (OTH)
discharge for the good of the service to avoid trial by court-
martial for the 237 day period of UA. At that time, you
consulted with counsel and acknowledged the consequences of
receiving such a discharge. On 14 September 1978, the
separation authority approved your request for an OTH
discharge. On 14 September 1978, you were separated with an
OTH discharge for the good of the service to avoid 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, carefully
considered all potential mitigation, such as your youth. The
Board also considered your contention that recruiter misconduct
and personal problems contributed to your misconduct.
Nevertheless, the Board concluded that these factors were not
sufficient to warrant recharacterization of your discharge due
to the seriousness of your misconduct. Regarding your
contentions, there is no evidence in the record to show that
you were guaranteed assignment as a combat engineer or
assignment to a specific location, and personal problems do not
excuse 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,
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