DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 04754-08
25 February 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.
anel of the Board for Correction of Naval
A three-member p
Records, sitting in executive session, considered your
application on 95 February 2009.
injustice were reviewed in accor
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 Marine Corps on 29 November 1974, and served
without disciplinary incident until 9 April 1975, when you
received nonjudicial punishment (NOP) for an unauthorized absence
(UA) .
Shortly thereafter, you received the following NUJP’s: on 23 April
1975, and on 27 June 1975, for UA. Then, on 12 September 1975,
you were convicted at a special court-martial for UA and breaking
restriction. In addition, from 25 September 1975 to 9 February
1976, you were ina UA status
months). Upon your surrender to the local police and return to
military authorities, you requested through counsel, to be
separated to escape a trial by court-martial. Therefore, on 26
February 1976, you were separated with an other than honorable
discharge and an RE-4 reenlistment code, in lieu of a 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 and application,
carefully weighed all potentially mitigating factors, such as
your youth and belief that enough time has elapsed to warrant
upgrading your discharge. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge because of the seriousness of your misconduct.
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 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,
\ -
W. DEAN PFEIF
Executive Dire
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