DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
-Bi06
WASHINGTON DC 20370-5 REC
Docket No: 00619-0909
24 November 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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your.
application on 24 November 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 “69Septenber L978, at age 18. On 4 February 1979, you
received nonjudicial punishment (NUP) for two periods of
unauthorized absence (UA) totaling 22 days. On 17 April 1979,
you received NUP for.being UA for a period of nine days. On 16
May 1979, you received NUP for an additional eight days of UA.
You were counseled and warned that further misconduct could
result in administrative discharge action. On 9 January 1979,
you began a period of UA lasting 21 days. On 3 April 1979, you
began an additional UA lasting nine days. You continued this
pattern of misconduct until 6 January 1981, when you had
accumulated 530 days of UA. Subsequently, on 14 January 1981,
you submitted a written request for an administrative 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 March 1981, you
received an other than honorable discharge 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, and
overall record of service. 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 nineteen months, and 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 Navy
regulations that allow for recharacterization of your discharge
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,
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