DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
TRG
WASHINGTON DC 20370-5100
Docket No: 8425-08
22 December 2008
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 9 December 2008. 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 enlisted in the Navy on 13 June 1979 at age 17 and reported
for recruit training that same day. During the period from 13
August 1979 to 23 February 1982 you were an unauthorized absentee
on five occasions totaling about 811 days. After each of the
first four periods of unauthorized absence you were counseled,
warned of the possible consequences of further misconduct, and
allowed to return for completion of recruit training.
On 23 February 1982 you were apprehended by civil authorities to
end your last period of unauthorized absence of about 259 days.
Although the documentation to support separation processing is
not filed in your record, it is clear that you submitted a
written request for a discharge under other than honorable (UOTH)
conditions in order to avoid trial by court-martial for that last
period of absence.
Regulations require that prior to submitting such a request, you
must have conferred with a qualified military lawyer, at which
time you would have been advised of your rights and warned of the
probable adverse consequences of accepting such a discharge. The
Board found that when your request was granted, you were spared
the stigma of a court-martial conviction and the potential
penalties of a punitive discharge and confinement at hard labor.
You were separated on 15 April 1982 with a UOTH conditions
discharge.
In its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your youth and
contention that you were infected with hepatitis while in
military confinement and need a recharacterized discharge so that
you can receive medical care from the Department of Veterans
Affairs. The Board found that these factors were not sufficient
to warrant recharacterization of your discharge given your
extensive record of misconduct and especially your request for
discharge to avoid trial for the offenses. There is no
documentation in your service record and you have submitted none
to support your contention that you were infected with hepatitis
while in the Navy. 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 also 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 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,
W. DEAN PFEIF
Executive Dir
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