DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DC 20370-5100 Docket No: 5391-08
21 January 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 13 January 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
. You enlisted in the Navy on 11 October 2001 at age 17. You
“satisfactorily completed initial training and served without
incident for over 18 months. On 13 March 2003 you received
nonjudicial punishment for a short period of unauthorized
absence, two instances of disobedience and theft of a pair of
work boots. Subsequently, you were counseled and warned that
further misconduct could lead to adverse consequences. Although
your record is incomplete, your DD Form 214 shows that you were
charged with lost time from 22 Aug to 10 October 2003, a period
of about 48 days.
Your military record indicates that you submitted a written
request for a discharge under other than honorable conditions in
order to avoid trial by court-martial for the 48 day period of
unauthorized absence. Your record also shows that 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. The Board found that your request was granted 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. You were discharged on
26 November 2003.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your youth and
contention, in effect, that you have matured and desire to again
serve in the military. The Board found that these factors were
not sufficient to warrant recharacterization of your discharge
given your record of misconduct and especially your request for
discharge to avoid trial for the offenses. The Board believed
that considerable clemency was extended to you when your request
for discharge to avoid trial by court-martial was approved since,
by this action, you escaped the possibility of confinement at
hard labor and a punitive discharge. Further, the Board
concluded that you received the benefit of your bargain when your
request for discharge was granted and you should not be permitted
to change it now. The Board concluded that your discharge was
proper as issued and no change is warranted.
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,
\Wees
W. DEAN PFE
Executive D r
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