DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 3209-08
5 February 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 3 February 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 1 February 1973 at age 17 and
served about four months without disciplinary incident. However,
during the period from 26 June 1973 to 2 April 1975 you received
nonjudicial punishment (NJP) on five occasions for four periods
of unauthorized absence (UA) totalling 23 days, three periods of
failure to go to your appointed place of duty, failure to obey a
lawful order, and disobedience. On 16 May 1975 you were
convicted by special court-martial (SPCM) of four periods of UA
totalling 154 days. You were sentenced to confinement at hard
labor for 79 days and a $450 forfeiture of pay.
On 9 January 1978 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for a 335 day period of UA. 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. Subsequently, 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. 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. On 16
March 1978 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, post service conduct, and desire to upgrade your
discharge. It also considered your explanation regarding your
period of UA which resulted in separation. Nevertheless, the
Board found the evidence and materials submitted were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your misconduct which resulted in
five NJUPs, a SPCM, and your request for discharge to avoid trial
by court-martial for your lengthy period of UA. 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,
~
W. DEAN P
Executive Dil or
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