DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 6128-08
19 March 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 18 March 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 29 December 1978, you enlisted in the Marine Corps at age
20, two days after you were married. On 14 February 1979, you
had nonjudicial punishment for disobedience of a lawful order.
During the period 10 to 13 May 1979, you were in an
unauthorized absence (UA) status. On 21 May 1979, you
completed a dependency application, which was subsequently
approved and administratively processed. During the period
16 June 1979 to 23 June 1980, you were in a UA status on two
occasions totaling about 361 days. On 25 July 1980, you
requested an other than honorable (OTH) discharge for the good
of the service to avoid trial by court-martial for the three
periods of UA that totaled 364 days. At that time, you
consulted with counsel, acknowledged the consequences of
receiving such a discharge, and submitted a statement. Your
counsel also submitted a statement detailing the circumstances
that led to your misconduct. On 12 August 1980, the separation
authority approved your request for an OTH discharge for the
good of the service to avoid trial by court-martial. On
26 August 1980, you were so discharged. 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,
delayed payment of allowances, and your family's extenuating
circumstances. Nevertheless, the Board concluded that these
factors were not sufficient to warrant recharacterization of
your discharge due to the seriousness of your lengthy UA's.
Furthermore, the Board noted that although administrative
action was not taken when you reported to recruit training that
would have activated payment of dependent allowances, it was
completed before you began your second period of UA. The Board
also noted that your UA's then placed you in a non-pay status.
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 PF
Executive
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