DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100. REC
Docket No: 10960-08
7 October 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. ae
A three-member panel of thé Board for Correction of Naval
Records, sitting in executive session, considered your :
application on 23 September 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 31 May 1974, at age 19. On 23 December 1974, you entered
-a period of unauthorized absence (UA) for 11 days. On 9. January |
1975, you were UA for a period of 83 days. On 15 April 1975, you
began a period of UA lasting 97 days, ending on 21 July 1975.
Subsequently, on 5 August 1975, you submitted a written request
for a good of the service discharge in order to avoid trial by
court-martial for the periods of UA. 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 3 September 1975,
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, post service health issues, and the medical
evidence accompanying your application. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of your misconduct
that resulted in periods of UA totaling over six months, and your
request for discharge. 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 there 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,
uc
W. DEAN P
Executive tor
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