DEPARTMENT OF THE NAVY ,
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 2037-08
13 January 2009
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 13 January 2009. The names and votes of the
members of the panel will be furnished upon request.
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 2 August 19716 at age 19 and
served without incident until 2 May 1973 when you received
nonjudicial punishment (NUP) for three specifications of
maltreatment. During the period from 5 September to 7 November
1974 you received NUP on three more occasions for two periods of
absence from your appointed place of duty and failure to obey a
lawful order.
On 24 April 1975 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for larceny and absence from your appointed place of duty. 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 12 May 1975 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 3 June 1975 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
youth, post service conduct, assertion that you were coerced into
requested 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 request for discharge to avoid
trial by court-martial for your repetitive 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.
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, fr
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