DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 5980-08
26 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 25 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 30 December 1975, you enlisted in the Navy at age
18. On 25 February 1977, you had nonjudicial punishment (NJP)
for possession of marijuana, a 20 day period of unauthorized
absence (UA), and missing the movement of your ship. You were
also counseled regarding your misconduct and warned that
further infractions could result in disciplinary action or
administrative separation. On 20 and 27 May 1977, you had NJP
for a brief instance of UA and dereliction in the performance
of your duties.
On 27 May 1977, your commanding officer initiated
administrative separation by reason of misconduct due to
frequent discreditable involvement. In connection with this
processing, you acknowledged that separation could result in
an other than honorable (OTH) discharge and waived the right
to have your case heard by an administrative discharge board.
Apparently, the separation authority approved the discharge
recommendation and directed an OTH discharge. On 3 June 1977,
you were transferred to a stateside duty station to await
separation, but the separation authority subsequently suspended
the discharge action on 22 June 1977, and directed a general
discharge upon completion of 12 months of probation.
On 15 July 1977, you began a UA that ended on 9 May 1978, a
period of about 298 days. On 15 June 1978, you requested an
OTH discharge for the good of the service to avoid trial by
court-martial for the 298 day period of UA. Based on the
information currently contained in the record, it appears that
the separation authority subsequently approved your request for
an OTH discharge. On 11 July 1978, 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 contention that alcoholism
contributed to your misconduct. Nevertheless, the Board
concluded that these factors were not sufficient to warrant
recharacterization of your service due to the seriousness of
your misconduct that continued even after your administrative
separation was suspended. Regarding your contention, there is
no evidence in the record to show that you were diagnosed as
being an alcoholic or abused alcohol, but even if there was
such evidence, it 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 Navy 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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