DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 3034-08
11 December 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
10 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 that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.
On 3 February 1971, you enlisted in the Marine Corps at age 18.
During the period 22 March to 22 December 1971, you had nonjudicial
punishment (NUP) on three occasions. Your offenses included
failure to obey a lawful order, assault, anda day of unauthorized
absence. On 18 January 1972, you were granted a drug exemption.
On 4 February 1972, a medical evaluation stated that you abused
drugs and diagnosed you with multiple character disorder traits.
On 6 February 1972, you were apprehended by civilian authorities and
charged with burglary and rape. On 10 March 1972, you were convicted
in civil court of rape and sentenced to an indeterminate period ina
state hospital.
On 26 May 1972, your commanding officer initiated administrative
separation by reason of misconduct due to civil conviction. In
connection with this processing, you acknowledged that separation
could result in an other than honorable (OTH) discharge and elected
counsel and the right to have your case heard by an administrative
discharge board (ADB). On 18 October 1972, an ADB convened with your
counsel present, found misconduct due to a civil conviction, and
recommended an OTH discharge. On 31 October 1972, the separation
authority approved the discharge recommendation and directed an OTH
discharge by reason of misconduct due to civil conviction. On
7 November 1972, you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potential mitigation, such as your youth. The
Board also considered your contention that your discharge resulted
from one isolated incident and you had no other disciplinary actions.
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 contention, the
record shows that you had three NJP's before you were convicted in
civil court of rape and your discharge met the requirements
established by regulations. Therefore, the Board concluded that the
discharge was proper as issued and no change is warranted.
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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