DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON BC 20370-5100 SON
Docket No: 08294-08
16 July 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 14 July 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.
You enlisted in the Marine Corps and began a period of active
duty on 20 February 1975 at age 17. On 30 July and 12 November
1975, you received nonjudicial punishment (NUP) for assault and
two instances of disobedience.
On 8 March 1976, you began a period of unauthorized absence (tA)
that lasted 61 days, ending on 8 May 1976. Subsequently, on 13
May 1976, you submitted a written request for a good of the
service discharge in order to avoid trial by court-martial for
that period of UA, failure to go to your appointed place of duty,
disobedience, breach of the peace, and drunk and disorderly
conduct. Prior to submitting this request for discharge, you
conferred with a qualified military lawyer, were advised of your
rights, and warned of the probable adverse consequences of
accepting such a discharge.
Your request for discharge was granted and on 11 June 1976, you
received an other than honorable discharge for the good of the
service in lieu of trial by court-martial. 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 application, carefully weighed
all potentially mitigating factors, such as your youth, overall
record of service, and belief that your characterization of
service would be automatically upgraded. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of your misconduct
that resulted in two NJP’s and charges being preferred to a
court-martial for a period of UA totaling over two months and
other serious offenses. The Board believed that considerable
clemency was extended to you when your request for discharge 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 should not be permitted to change it
now. Further, you are advised that theré is no provision in the
law or naval regulations that allow for recharacterization
automatically due solely to the passage of time. 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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