DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100
TJIR
Docket No: 1628-09
18 November 2009
This is in reference to your application for correction of your
late husband's 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 17 November 2009. The names and votes of the
members of the panel will be furnished upon request. 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 late husband’s 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. ,
Your husband enlisted in the Navy on 5 November 1973 at age 27
after serving nearly five years of honorable service in the Army
and Army Reserve. He served without disciplinary infraction
until 22 March 1974, when he received nonjudicial punishment
(NJP) for an eight day period of unauthorized absence (UA) and
Missing the movement of his ship.
During the period from,8 July to 22 November 1974 your husband
was. in a UA status on two more occasions and declared a deserter.
One of these occasions was not terminated until he was
apprehended by civil authorities, specifically, the Federal
Bureau of Investigation (FBI). On 17 January 1975 he submitted a
written request for an undesirable discharge in order to avoid
trial by court-martial for the foregoing periods of UA totalling
130 days. His record shows that prior to submitting this
request, he conferred with a qualified military lawyer at which
time he was advised of his rights and warned of the probable
adverse consequences of accepting such a discharge. on February
1975, his request was granted and the commanding officer was
directed to issue him an undesirable discharge by reason of the
good of the service. As a result of this action, he was spared
the stigma of a court-martial. conviction and the potential
penalties of a punitive discharge and confinement at hard labor.
On 13 February 1975 your husband was issued an other than
honorable discharge. .
The Board, in its review of your late husband’s entire record and
your application and its attachments, carefully weighed all
potentially mitigating factors, such as his youth, prior
honorable service, post service conduct, and your desire to
upgrade his discharge. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
late husband's discharge because of the seriousness of his
misconduct and repetitive periods of UA, which resulted in NUP
and his request for discharge. The Board believed that
considerable clemency was extended to your late husband when his
request for discharge to avoid trial by court-martial was
approved. Further, the Board concluded that he received the
benefit of his bargain with the Navy when his request for
discharge was granted and you should not be permitted to change
it now. Accordingly, your application has been denied.
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,
Que el
W. DEAN P K
Executive rector
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