DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 4910-08
20 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 19 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 2 December 1968, you enlisted in the Marine Corps at age
17 with parental consent. During the period 2 June 1969 to
13 August 1970, you were in an unauthorized absence (UA) status
on six occasions totaling about 377 days. On 26 August 1970,
you requested an undesirable discharge (UD) for the good of the
service to avoid trial by court-martial for the six instances
of UA totaling 377 days. At that time, you consulted with
counsel and acknowledged the consequences of receiving such a
discharge. On 5 October 1970, the separation authority
approved your request for a UD. On 13 October 1970, 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 a mental or physical
instability 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 12
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,
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