DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX TRG
WASHINGTON DC 20370-5100 Docket No: 7417-08
11 February 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 10 February 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
You reenlisted in the Marine Corps on 6 November 1973 at age 23.
On 21 December 1973 you were recommended for discharge because it
was discovered that you had fraudulently enlisted. On 22 January
1974 the separation authority approved a general discharge which
was suspended for 12 months of probation.
On 18 April 1974 you began a period of unauthorized absence which
lasted until you surrendered on 15 July 1975, a period of about
453 days. On 28 August 1975, the separation authority denied
your request for an administrative discharge and ordered that you
be tried by court-martial for your unauthorized absence. On 8
September 1975 you began another period of unauthorized absence
which lasted until you were apprehended on 8 January 1976, a
period of about 122 days.
Your military record shows that you submitted a written request
for an undesirable discharge (UD) in order to avoid trial by
court-martial for the two periods of unauthorized absence
totaling about 575 days. Your record also shows that 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. The Board found that your request was granted on 11
March 1976 and, 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. You
received a UD on 17 March 1976.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as the indication in the
record showing that you were having personal problems and your
contention that you were sick while in the Marine Corps. The
Board found that these factors and contention were not sufficient
to warrant recharacterization of your discharge given your record
of misconduct and especially your request for discharge to avoid
trial for the offenses. The Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved since, by this action,
you escaped the possibility of confinement at hard labor and a
punitive discharge. Further, the Board concluded that you
received the benefit of your bargain when your request for
discharge was granted and you should not be permitted to change
it now. The Board concluded that your discharge was proper as
issued and no change is warranted.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
It ig 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,
enn E>, Aa ome
Foe_W. DEAN ELFFBER
Executive Director
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