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NAVY | BCNR | CY2009 | 00097-09
Original file (00097-09.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Docket No: 0097-09
at 26 October 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 16 October 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 on 26 January 1973, and served
without disciplinary incident until you entered an unauthorized
absence (UA) status, in excess of 165 days. Upon your return to
military custody, you were pending a special court-martial for
your UA. However, you requested through counsel, to be separated
to escape a trial by court-martial. Therefore, on 24 May 1974,
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. The Board believed that considerable clemency
was extended to you when your request for discharge to avoid
trial by court-martial was approved and 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,

  

Executive Dir

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