DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 09370-08
21 August 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 13 August 2009. Your allegations of error and
injustice were réviewed 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 29 September 1972, and served
without disciplinary incident until 4 May 1973, when you received
nonjudicial punishment (NJP) for assault.
Shortly thereafter, you received the following NUP’s: on 23. June
1973, for leaving your post without being properly relieved,
unauthorized absence (UA), and failure to obey a lawful order by
having alcohol in the enlisted barracks; on 28 June 19373, for
breaking restriction; on 22 January 1974, for disobeying a
commissioned officer and UA; on 15 February 1974, for breaking
restriction; on 28 February 1974, for failure to obey a lawful
order; and on 5 March 1974, for breaking restriction. fn
‘addition, you were in a UA status from 3 to 13 May 1974, 23 July
1974 to 24 March 1975, and 1 May to 28 June 1975. You requested
an other than honorable (OTH) discharge for the good of the
service to avoid trial by court-martial for the UA charges. At
that time, you consulted with counsel and acknowledged the
adverse consequences of accepting such a discharge.
Therefore, on 27 June 1975, you were separated with an OTH
discharge and an RE-4 reenlistment code, in lieu of a 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 entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and belief that enough time has elapsed to warrant
upgrading your discharge. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge because of the seriousness of your misconduct.
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, ?
W. DEAN PFE =
Executive Diy Or
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