DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 4282-08
19 March 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 17 March 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 Navy on 7 November 1972 at age 18. On 4
April 1973 you were granted an exemption waiver for your use of
Marijuana and nerve pills while on liberty. About four months
later, on 2 August 1973, you received nonjudicial punishment
(NUP) for a two day period of unauthorized absence (UA).
On 8 August 1973, during an investigation regarding the
possession, use, and sale of illegal drugs, you submitted a
written statement regarding 17 specifications of possession, use,
and sale of marijuana, mescaline, and lysergic acid diethylamide
(LSD). This statement also stated that you and eight other
Sailors and a civilian participated in this drug related activity
during the period from December 1972 to August 1973.
On 19 February 1974 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for only seven specifications of the foregoing drug related
misconduct, which were wrongful possession and use of marijuana,
LSD, and mescaline. 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 5 March 1974 your
commanding officer recommended your request be approved even
though your original guilty plea of 17 specifications of
possession, use, and sale of marijuana, LSD, and mescaline could
not be corroborated due to a lack of evidence. 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 15 March 1974 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, desire to upgrade your
discharge, explanation regarding the circumstances of your
discharge, and the passage of time. It also considered your
assertion that you were not offered drug rehabilitation because
you did not testify against other Sailors regarding illegal drug
usage. If further considered your assertion that you were not
informed by your legal counsel of the characterization of the
discharge that you were requesting. Nevertheless, the Board
found the evidence and materials submitted were not sufficient to
warrant recharacterization of your discharge because of the
seriousness of your drug related misconduct and your request for
discharge to avoid trial by court-martial for this 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. The Board also 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. Finally, there is documented
evidence in the record that is contrary to your assertions.
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,
\S
W. DEAN PF
Executive D
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