DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SJN
Docket No: 04171-09
22 March 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 16 March 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 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 7 June 1973 at age 20. On 1 August 1973 and 3 January
1974, you received nonjudicial punishment (NJP) for 11 days of
unauthorized absence (UA) and disobedience. On 21 November 1975,
you were convicted by summary court-martial (SCM) of 43 days of
UA. On 6 January 1976, you began a period of UA that lasted 150
days which ended with your apprehension on 26 May 1976 by civil
authorities for first degree assault. Subsequently, on
30 July 1976, you submitted a written request for a good of the
service discharge in order to avoid trial by court-martial for
that 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 6 August 1976, 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 and record
of service. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given your misconduct that resulted in two NJP’s, a SCM
conviction, pending charge by civilian authorities for a very
serious offence, charges being preferred to a court-martial for a
period of UA totaling five months, and especially 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 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,
\ Danse. 00”
W. DEAN PFE
Executive Di r
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