DEPARTMENT OF THE NAVY.
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 REC
Docket No: 02983-09
20 January 2010
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 20 January 2010. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicablie 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 4 December 1973, at age 18. On 10 October 1973, you were
convicted at a special court-martial (SPCM) for negligently
killing a fellow Marine. On 28 January 1974, you received
nonjudicial punishment (NUP) for being in an unauthorized absence
(UA) status. On 9 April 1974, you received NUJP for a second
period of UA totaling 20 days. On 28 August 1974, you received
NUP for being absent from your appointed place of duty. On
20 January 1975, you were UA for a period of 67 days. On
31 March 1975, you began a period of UA lasting 78 days, ending
on 17 June 1975.°
Subsequently, on 2 September 21975, you submitted a written
request for a good of the service discharge in order to avoid
trial by court-martial for the periods 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 18 September 1975,
you received an other than honorable discharge for the good of
the service 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, overall
record of service, and application. 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 five 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 naval regulations that allow for recharacterization
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,
\S\voga
W,. DEAN
Executive
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