DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 5736-08
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 11 January 1979, you enlisted in the Marine Corps at age 24.
On 8 June 1979, you had nonjudicial punishment for a 33 day
period of unauthorized absence (UA). During the period
15 October 1979 to 28 August 1980, you were in a UA status on
four occasions totaling about 258 days. On 17 September 1980,
you requested an other than honorable (OTH) discharge for the
good of the service to avoid trial by court-martial for charges
of the four instances of UA totaling 258 days. At that time,
you consulted with counsel and acknowledged the consequences of
receiving such a discharge. On 26 September 1980, the
separation authority approved your request for an OTH
discharge. On 10 October 1980, you were separated with an OTH
discharge 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 belief that your discharge
would change after six months. Nevertheless, the Board
concluded that these factors were not sufficient to warrant
recharacterization of your service due to the seriousness of
your misconduct. Regarding your belief, 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,
\S
W. DEAN
Executive D
or
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