DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 6382-08
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 reguest. 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 3 January 1974 at age 18 and
served for four months without disciplinary incident. However,
on 22 May 1974 you received nonjudicial punishment (NIP) for
disobedience. On 13 June 1974 you received NUP for a 15 day
period of unauthorized absence (UA). During the period from 3
September to 15 November 1974 you received four more NUPs for
absence from your appointed place of duty, four periods of UA
totalling 21 days, disobedience, and disrespect.
On 12 December 1974 you submitted a written request for an
undesirable discharge in order to avoid trial by court-martial
for disrespect, disobedience, and two specifications of assault.
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 20 December 1974 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 31 December 1974 you
were issued an other than honorable discharge.
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, and a previous
appeal to upgrade your discharge. It also considered your
assertion that you left the Marine Corps after having a mental
breakdown. Nevertheless, the Board found the evidence and
materials submitted were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your misconduct which resulted in six NUPs 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,
Woe debe
W. DEAN PFEYVFFEHR
Executive D or
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