DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 _
BAN - |
Docket No: 12230-08
4 November 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 4 November 2009. Your allegations of error and
injustice were reviewed in accordance with administrative .
regulations and procedures applicable to the preceedings 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 Navy on 14 August 1972, and served without
' disciplinary incident until 22 August 1974, when you received
nonjudicial punishment for failure to obey a lawful order by your
use of an illegal substance (marijuana).
Shortly thereafter, in November 1974, you were pending a special
court-martial for failure to obey a lawful order by possessing
and selling hashish and wrongful appropriation of government
property. However, you requested through counsel, to be
separated to escape a trial by court-martial. Therefore, on 9
January 1975, you were separated with an other than honorable
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. Finally, the Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved. It was clear to the
Board that you received the benefit of your bargain with the Navy
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 mattér 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,
\ a)
W. DEAN PFEIL
Executive Di
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