DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
, WASHINGTON DC 20370-5100
REC
Docket No: 03059-09
2 February 2010
This is in reference to your application for correction of your
naval record pursuant to the provisions of titie 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 26 January 2010. 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 wag 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 9 August 1978, at age 18. On 14 May 1979, you received
nonjudicial punishment (NIP) for a period of unauthorized absence
(UA) totaling eight days. On 20 May 1980, you were convicted by
special court-martial (SPCM) for desertion from 7 July to
3 November 1980 and wrongful assault on two occasions. You were
sentenced to a reduction in pay grade to E-2, and confinement at
hard labor for one month. Shortly after your conviction you
continued this pattern of misconduct and commenced another period
of UA totaling 48 days. On 30 July 1981, you were convicted by
summary court-martial (SCM) for two additional periods of UA
totaling seven days. You were sentenced to forfeitures of $330,
reduction in pay grade to E-1 and 30 days restriction.
Subsequently, you submitted a written request for a good of the
service discharge in order tc avoid trial by court-martial for
the periods of UA from 7 November to 24 December 1980. 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 for the good of
service on 2 October 1981. 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 one
NJP, convictions by both a SPCM and SCM for periods of UA
totaling over six months, 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
Marine Corps ‘when your request for discharge was granted and
shoulda not be permitted to change it now, Finally, there is no
provision of law or Navy regulations that allow for
recharacterization of your service 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 reconsicger 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 officiai naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
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