DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 3441-08
9 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 7 January 2009. 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.
On 29 April 1991, you enlisted in the Navy Reserve at age 18
and began a period of active service on 10 July 1991. On
23 July 1992, you had nonjudicial punishment (NIP) for two
instances of unauthorized absence (UA) totaling about seven
days. On 23 July 1992, a psychiatric evaluation diagnosed you
has having an adjustment disorder. You were also counseled
regarding deficiencies in your performance and conduct and
warned that further infractions could result in disciplinary
action or an other than honorable (OTH) discharge. On
1 October 1992, you had NUP for a two day period of UA.
On 1 October 1992, your commanding officer initiated
administrative separation by reason of misconduct due to minor
disciplinary infractions, and recommended a general
characterization of service. In connection with this
processing, you acknowledged the separation action.
During the period 27 October to 15 November 1992, you were
in a UA status on two occasions that totaled about 16 days.
On 15 November 1992, you began another period of UA. On
9 December 1992, the separation authority approved the
discharge recommendation, but the separation action
was subsequently suspended due to your UA status. On
2 January 1993, you surrendered after being in a UA status
for about 48 days. Based on the information currently
contained in the record, it appears that you subsequently
requested an OTH discharge for the good of the service to avoid
trial by court-martial for the 48 day period of UA. At that
time, you would have consulted with counsel and acknowledged
the consequences of receiving such a discharge. Apparently,
the separation authority approved your request for an OTH
discharge. On 12 March 1993, you were separated with an OTH
discharge for the good of the service to avoid trial by court-
martial and assigned an RE-4 reenlistment code. 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.
The Board, in its review of your entire record, carefully
considered all potential mitigation, such as your youth and
psychiatric evaluation. The Board also considered your
contention that personal problems contributed to your
misconduct. Nevertheless, the Board concluded that these
factors were not sufficient to warrant recharacterization of
your discharge or changing the reenlistment code due to your
misconduct that continued even after you were counseled and
subsequently recommended for a general discharge. Regulations
direct assignment of an RE-4 reenlistment code to members who
are discharged for the good of the service to avoid trial by
court-martial. Regarding your contention, the record does show
that you had personal problems, but that does not excuse your
misconduct. Furthermore, the Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved. The Board also
concluded that you received the benefit of your bargain with
the Navy 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
2
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,
1S on >ยป . AQ
Feu. Ww. DEAN PFEIFFER
Executive Director
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