DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5700
BAN
Docket No: 1800-03
17 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 12 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 Navy on 12 June 1997, and served without
disciplinary incident until 27 August 1998, when you received
nonjudicial punishment (NUP). Shortly thereafter, you were
pending a special court-martial for an unauthorized absence and
missing ship’s movement. However, you requested through counsel,
to be separated to escape a trial by court-martial. Therefore,
on 6 January 1999, 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. Furthermore, 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 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,
W. DEAN P
Executive D
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