DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
REC
Docket No:- 02170-0939
17 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 16 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 Marine Corps and began a period of active
duty on 21 February 1978, at age 17. On 1 May 1979, you received
nonjudicial punishment (NUP) for being in an unauthorized absence
status (UA) totaling ten days. On 13 November 1979, you received
NUP for being UA for a period of two days. On 7 July 1980, you
were counseled concerning driving on base with a suspended
license. On 19 March 1980, you received NUP for an additional
four days of UA. You were counseled and warned that further
misconduct could result in administrative discharge action. On
13 May 1980, you received NUP for having possession of marijuana.
On 16 July 1980, you began an additional UA lasting 442 days.
Subsequently, on 6 October 1981, you submitted a written request
for an administrative discharge in order to avoid trial by court-
martial for the 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 on 16 October 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 fourteen 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,
\y '
Qoacs
W. DEAN P E
Executive rector
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