DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 04835-08
30 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 25 March 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.
You enlisted in the Marine Corps on 2 March 1967, and served
without disciplinary incident until 29 July 1968, when you were
in an unauthorized absence status on two occasions.
Shortly thereafter, on 3 September 1969, you were an unauthorized
absentee and were declared a deserter for five years, four
months, and three days. However, in January 1975, you
surrendered to the military authorities and through counsel
requested a separation in lieu of a trial by court martial. Your
request was approved and on 20 January 1975, you were separated
with an undesirable discharge and an RE-4 reenlistment code. As
a result of this action, you were spared the stiyma of a court-
martial conviction and the penalties of a punitive discharge and
confinement at hard labor
Additionally, prior to your separation, you agreed to serve
eleven months alternate service due to the Presidential
Proclamation Act. On 19 April 1976, upon your completion of
alternate service, you were granted a full pardon by the
President of the United States. The Presidential Clemency Board
issued you a clemency discharge based upon your completion of
alternate service. Presidential Proclamation 4313 of 16
September 1974, provided for voluntary alternative service under
the auspices of the Reconciliation Service Program and the
Selective Service System, for a specified period. Upon
completion of the alternative service, former servicemembers
would be granted a clemency discharge. This restored civil
rights although not veterans’ rights or benefits.
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 a change to your
clemency 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. The Board also concluded that you received the
benefit of your bargain with the Marine Corps when your request
for a discharge to avoid trial by court-martial 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,
\ Weak
W. DEAN PFETIRVE
Executive Director
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