DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 4511-08
5 February 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 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 13 August 1973, you enlisted in the Marine Corps at age
19. On 21 January 1974, you began an unauthorized absence (UA)
that ended on 4 February 1974, a period of about 14 days. On
8 February 1974, you received a medical evaluation during which
you disclosed pre-service use of amphetamines and occasional
use of lysergic acid diethylamide compounds. The evaluation
found that you were not physically dependent on drugs and
recommended counseling. On 13 February 1974, you had
nonjudicial punishment for the 14 day period of UA. On
2 May 1974, a Naval Investigation Service (NIS) report stated
that you were pending civilian action for an alleged armed
robbery and a disciplinary action for your unauthorized
possession of a dangerous weapon found by an NIS agent in your
wall locker, specifically, a .22 caliber pistol. During the
period 28 May 1974 to 27 April 1976, you were in a UA status on
two occasions totaling about 664 days. On 12 May 1976, you
requested an undesirable discharge (UD) for the good of the
service to avoid trial by court-martial for the two periods of
UA that totaled 664 days. At that time, you consulted with
counsel and acknowledged the consequences of receiving such a
discharge. On 13 May 1976, the separation authority approved
your request for a UD. On 18 May 1976, 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 contention that personal problems
contributed to your misconduct. Nevertheless, the Board
concluded that these factors were not sufficient to warrant
recharacterization of your discharge due to the seriousness of
your misconduct, specifically, more than 22 months of total UA.
Regarding your contention, there is no evidence in the record
to support it, but even if there were such evidence, that would
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 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.
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,
Suen
W. DEAN PF!
Executive Di
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