DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DG 20370-5100 Docket No: 3356-08
6 January 2009
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 6 January 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.
You enlisted in the Navy on 29 February 2000 at age 22. You then
served without incident for about 11 months. In January 2001 you
were an unauthorized absentee for about five days for which there
is no disciplinary action in the record. On 31 July 2001 you
were convicted by a summary court-martial of an unauthorized
absence of about 35 days. On 13 November 2002 you began another
period of unauthorized absence which lasted until you were
apprehended on 23 April 2004, a period of about 527 days.
Your military record shows that you submitted a written request
for a discharge under other than honorable conditions in order to
avoid trial by court-martial for the 527 day period of absence.
Your record also shows that 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. The Board found that
your request was granted and, 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. You were discharged under other than honorable
conditions on 6 May 2004.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your periods of good
service and desire to again serve in the military. The Board
found that these factors were not sufficient to warrant
recharacterization of your discharge given your record of
misconduct and especially your request for discharge to avoid
trial for the offenses. The Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved since, by this action,
you escaped the possibility of confinement at hard labor and a
punitive discharge. Further, the Board concluded that you
received the benefit of your bargain when your request for
discharge was granted and you should not be permitted to change
it now. The Board concluded that your discharge was proper as
issued and no change is warranted.
Concerning your request for a change in the reenlistment code,
you should be aware that the only authorized code when an
individual is discharged for the good of the service is an RE-4.
Since you have been treated no differently than all others
discharged for that reason, the Board could not find an error or
injustice in the assignment of the RE-4 reenlistment code.
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,
A
Executive Di
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