DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51600
TIR
Docket No: 7410-08
28 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 27 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 14 February 1977 at age i7
and served for nearly eight months without disciplinary incident.
However, on 25 October 1977 you received nonjudicial punishment
(NJP) for theft of a magazine.
On 22 May 1978 you received NUP for eight periods of absence from
your appointed place of duty, disrespect, three specifications of
disobedience,*and a one day period of unauthorized absence (UA) .
During the period from 3 June to 11 July 1978 you were in a UA
status on two more occasions for 25 days. However, the record
does not reflect the disciplinary action taken, if any, for this
Misconduct.
On 4 August 1978 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for disobedience, eight specifications of failure to obey a
lawful order, three specifications of indecent exposure, and two
specifications of breaking restriction. 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.
Subsequently, 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 11 September 1978 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, and desire to upgrade your
discharge. Nevertheless, the Board found the evidence and
materials submitted were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your frequent periods of absence and repeated misconduct,
which resulted in two NJPs 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,
Wage
Executive Di
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