DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 6467-08
21 May 2009
This is in reference to your application for correction of your
late daughter’s 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 12 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 daughter’s 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 23 November 1988 at age 18
and began a period of active duty on 13 December 1988. You
served without disciplinary incident until 15 July 1989, when you
received nonjudicial punishment (NJP) for a two day period of
unauthorized absence (UA). The punishment imposed was a $300
forfeiture of pay and restriction for 30 days, all of which was
suspended for six months. However, on 11 July 1989, the
punishment was vacated due to your continued misconduct.
On 17 July 1989 you began a period of UA that was not terminated
until you were apprehended by civil authorities on 20 August
1990. During this period of UA you were also declared a
deserter. On 20 September 1990 you submitted a written request
for an other than honorable discharge in order to avoid trial by
court-martial for the foregoing period of UA totalling 400 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. However, your commanding officer recommended your
request be denied and that you be referred to a court-martial due
to the length of your period of UA. Nonetheless, your
other than honorable discharge 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 17 October 1990 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, post service conduct, desire 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 period of UA which resulted in 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. Further, the Board concluded that you received the
benefit of your bargain with the Navy when your request for
discharge was granted and as such, the discharge should not be
changed. 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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