DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 6349-08
7 May 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 5 May 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 8 May 1969 at age 17 and
served for seven months without disciplinary incident. However,
on 20 January 1970 you received nonjudicial punishment (NJP) for
a 19 day period of unauthorized absence (UA). The punishment
imposed was restriction for 14 days and a $25 forfeiture of pay.
On 10 February 1971 you submitted a written request for an
undesirable discharge in order to avoid trial by court-martial
for two periods of UA totalling 265 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 March 1970 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. 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. On 7 June 1970 you were issued an other than
honorable ‘iischarge.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth, desire to upgrade your discharge so that you may
obtain veterans’ benefits, previous appeals to upgrade your
discharge, and the passage of time. Nevertheless, the Board
found the evidence and materials submitted were not sufficient to
warrant recharacterization of your discharge because of the
seriousness of your lengthy periods of UA which resulted in NJP
and 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. Finally, 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. 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,
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