DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 2815-09
28 December 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 15 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 on 2 February 1988, and served without
disciplinary incident until 16 November 1988, when you received
nonjudicial punishment for an unauthorized absence (UA) in. excess
of 30 days and missing ship’s movement. Shortly thereafter, you
were in a UA status for 596 days and pending court-martial
charges of desertion. However, you requested through counsel, to
be separated to escape a trial by court-martial. Therefore, on
1i January 1991, you were separated with an other than honorable
discharge due to your misconduct and an RE-4 reenlistment code,
in liew 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 and reenlistment code. Nevertheless,
the Board concluded these factors were not sufficient to warrant
recharacterization of your discharge or reenlistment code 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.
Finally, 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,
(Rare RD
FetiW. DEAN PFETFFER
Executive Director
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