DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMS
Docket No: 7887-08
7 May 2009
This igs 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 6 May 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
On 5 November 1986, you enlisted in the Marine Corps at age
22. During the period 11 June 1987 to 12 January 1988, you
had nonjudicial punishment on four occasions, were convicted
by a summary court-martial, and had two suspended punishments
vacated. Your offenses included assault, use of cocaine, drunk
and disorderly conduct, communicating a threat, absence from
your appointed place of duty, disobedience of a lawful order,
and dereliction in the performance of your duties. On
1 March 1988, you were counseled regarding deficiencies in
your performance and conduct, warned that further infractions
could result in disciplinary action or an other than honorable
(OTH) discharge, and informed where substance abuse assistance
was available. During the period 24 March to 5 April 1988,
you were in an unauthorized absence (UA) status, and on
5 April 1988, the date that your period of UA ended, your
urinalysis tested positive for cocaine. On 13 June 1988, you
requested an OTH discharge for the good of the service to avoid
trial by court-martial for charges of use of cocaine and the 12
day period of UA. At that time, you consulted with counsel and
acknowledged the consequences of receiving such a discharge.
On 17 June 1988, the separation authority approved your request
for an OTH discharge for the good of the service to avoid trial
by court-martial. On 18 July 1988, you were so discharged. 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.
The Board, in its review of your entire record, carefully
considered all potential mitigation, such as your youth.
The Board also considered your contention that you had a
substance abuse problem that was never addressed and belief
that your OTH discharge would automatically be upgraded.
Nevertheless, the Board concluded that these factors were not
sufficient to warrant recharacterization of your discharge due
to the seriousness of your misconduct. Regarding your
contention, the record shows that you were informed that
substance abuse assistance was available and there is no
evidence in the record to show that you were ever denied
assistance. Further, there is no provision in the law or
regulations that allows for recharacterization of service due
solely to the passage of time. Furthermore, the Board believed
that considerable clemency was extended to you when your
request for discharge to avoid trial by court-martial was
approved. The Board also 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.
The names and votes of the members of the panel will be
furnished upon request.
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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