DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 5238-08
19 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 17 March 2009. The names and votes of the members
of the panel will be furnished upon request. 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 28 February 1972 at age 17
and served for nearly five months without disciplinary incident.
However, during the period from 5 July 1972 to 8 June 1973 you
were in an unauthorized absence (UA) status on two occasions for
305 days. On 2 July 1973 you began another period of UA that was
not terminated until you were apprehended by civil authorities on
22 August 1973. As a result of this arrest, on 9 September 1973,
you were convicted by civil authorities of armed assault and
robbery and a handgun violation. You were sentenced to an
unspecified period of confinement. However, on 12 February 1974,
you were returned to military custody.
On 13 March 1974 you submitted a written request for an
undesirable discharge in order to avoid trial by court-martial
for the foregoing three periods of UA totalling 530 days. Prior
to submitting this request, you conferred with a qualified
military lawyer at which time you were advised of your rights and
warned of the probable adverse consequences of accepting such a
discharge. On 3 April 1974 your request was granted and your
commanding officer was directed to issue you an other than
honorable discharge by reason of the good of the service. Asa
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. On 11 April 1974 you
were issued an other than honorable discharge.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge so that you may
obtain medical assistance. It also considered your assertions
that you were not afforded legal representation, and that you
were not medically fit prior to entry into the Marine Corps.
Nevertheless, the Board found the evidence and materials
submitted were not sufficient to warrant recharacterization of
your discharge because of the seriousness of your frequent and
lengthy periods of UA which also resulted in your request for
discharge to avoid trial by court-martial. Further, 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 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. Finally, there is no evidence in the record, and you
submitted none, to support your assertions. Accordingly, your
application has been denied.
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,
WwW. DEAN P F
Executive |Divector
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