DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 01939-08
13 November 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 16
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.
You enlisted in the Marine Corps on 22 April 1969, and during the next
two years, you received four nonjudicial punishments, and a special
court-martial. Your offenses included unauthorized absence, failure
to obey a lawful order, larceny, misbehavior of a sentinel, disrespect
toward a noncommissioned officer, and a general order violation.
Shortly thereafter, on 25 January 1971, you were separated. You
received an undesirable discharge and an RE-4 reenlistment code due to
being unfit for military service. You appealed to the Naval Discharge
Review Board for an upgrade in characterization. However, on 8 May
1973, your request was disapproved. On 12 April 1977, you appealed
again, this time, to the Department of Defense, Special Discharge
Review Program due to Public Law 95-126, which revised standards for
those who received less than honorable discharges for service during
the Vietnam era.’ As a result of this program, discharges were
* On 16 September 1974, President Ford issued Proclamation 4313 and
Executive Order 11803 establishing a clemency program covering four
categories of persons: fugitives, both draft offenders and military
absence offenders, convicted draft offenders and former service
personnel with undesirable or bad conduct discharges for unauthorized
upgraded to general or honorable discharge on a case by case basis, in
the spirit of forgiveness and compassion. However, regardless of the
type or characterization of discharge, the Department of Veterans
Affairs had the right to deny benefits based on Title 10, United
States Code, Sections 1553 and 3103(a)*. Persons whose discharges fall
into the statutory bars of section 3103 would not be considered
eligible for veteran entitlements.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as your
youth. Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge because of
the seriousness of your misconduct. 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,
\ Neorg
W. DEAN P F@R
Executive Dil oO
absences. Only individuals who had committed a selective service law
or military offense between 4 August 1964 and 28 March 1973, were
eligible.
? Section 3103(a) consists of bars to benefits, to include: discharge
or dismissal by reason of the sentence of a general court martial,
discharge as a conscientious objector who refused to perform military
duty or refused to wear the uniform or otherwise to comply with lawful
orders of competent military authority, discharge as a deserter,
discharge or dismissal of an individual during any period of
hostilities as an alien, or in the case of an officer, the dismissal
by resignation for the good of the service.
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