DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 4345-08
5 February 2009
seencemnanamnaanseneet
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 4 February 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 4 April 1973, you enlisted in the Navy at age 17 with
parental consent. On 31 July 1973, you had nonjudicial
punishment for three instances of unauthorized absence (UA)
that totaled about 10 days. You were also counseled regarding
deficiencies in your performance and conduct and warned that
further infractions could result in disciplinary action or an
undesirable discharge (UD).
During the period 17 August to 17 October 1973, you were ina
UA status, a period of about 61 days. On 5 November 1973, you
began another period of UA. On 24 December 1973, you reached
the age of 18. On 24 January 1974, you were apprehended by
Civilian authorities after being in a UA status for about 80
days. On 11 February 1974, you requested an UD for the good of
the service to avoid trial by court-martial for the two periods
of UA that totaled 141 days. At that time, you consulted with
counsel and acknowledged the consequences of receiving such a
discharge. On 21 February 1974, the separation authority
approved your request for a UD. On 27 February 1974, you were
separated with a UD for the good of the service to avoid trial
by court-martial. 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.
The Board also considered your contentions that you were not
given the proper information when you requested a UD and you
should have been discharged due to a reduction in force.
Nevertheless, the Board concluded that these factors were not
sufficient to warrant recharacterization of your discharge due
to the seriousness of your lengthy UA's. Regarding your
contentions, the record shows that you requested a UD for the
good of the service to avoid trial by court-martial after you
consulted qualified counsel and acknowledged the consequences
of receiving such a discharge, and there is no evidence in the
record to show that you were eligible for consideration to be
discharged due to a reduction in force. Further, there is
no provision in the law or regulations that allows for
recharacterization of service due solely to the passage of
time. 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
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 PFE
Executive Di r
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