DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 REC
Docket No: 02049-09
10 December 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 9 December 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 and began a period of active duty on
16 April 1979, at age 21. On 3 October 1980, you entered a
period of unauthorized absence (UA) for 816 days. Subsequently,
you submitted a request for an other than honorable discharge in
order to avoid trial by court-martial for the lengthily period 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 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 a
period of UA totaling over two years, and your 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 Navy 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,
lp
W. DEAN
Executive ‘D4 r
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