DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 2011-08
10. 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 9 December 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 26 September 1974 at age 20
and served without incident until 23 March 1976, when you were
convicted by special court-martial (SPCM) of a 128 day period of
unauthorized absence (UA). You were sentenced to confinement at
hard labor for 45 days, a $200 forfeiture of pay, and reduction
to paygrade E-1.
During the period from 29 April to 23 June 1976 you were in
another UA status that was not terminated until you were
apprehended by civilian authorities. During this period you were
also declared a deserter.
On 13 July 1976 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 51 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 19 July 1976 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. Asa
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 26 July 1976 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
your youth and assertion that you were told that your discharge
could be upgraded upon request. It further considered your
assertion that other branches of the armed forces issued general
or honorable discharges for the same offenses for which you
received an other than honorable discharge. Nevertheless, the
Board found the evidence and materials submitted were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your repeated and lengthy periods
of UA and your request for discharge to avoid trial by court-
martial for this misconduct. 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 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,
Executive Di
N
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