DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 4707-09
13 April 2010
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 13 April 2010. The names and votes of the
members of the panel will be furnished upon request. 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 on 17 December 1976 at age 18
and began a period of active duty on 23 August 1977. You served
for a year without disciplinary incident, but during the period
from 6 September to 17 November 1978, you received nonjudicial
punishment (NUP) on three occasions for absence from your
appointed place of duty, using provoking gestures, and
disrespect.
On 20 March 1979 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for larceny of a cassette stereo valued at $149 and wrongful
appropriation of government property, specifically, a base
vehicle decal. Prior to submitting this request you conferred
with a qualified military lawyer at which time you were advised
of your rights and warned of the probable adverse consequences of
accepting such a discharge. Subsequently, your request was
granted and the commanding officer was directed to issue you an
other than honorable discharge by reason of the good of the
service. 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. On 15 March
1979 you received your fourth NUP for failure to obey a lawful
order and breaking restriction. Shortly thereafter, on 7 May
1979, you were issued an other than honorable discharge.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge. It also
considered your assertion that you were falsely accused of theft
of government property. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of the seriousness of your misconduct which
resulted in four NJPs and your request for discharge. The Board
believed that considerable clemency was extended to you when your
request for discharge to avoid trial by court-martial was
approved. Further, the Board concluded that you received the
benefit of your bargain with the Marine Corps when your request
for discharge was granted and you should not be permitted to
change it now. Finally, there is documented evidence in the
record which is contrary to your assertion of being falsely
accused on theft. Accordingly, your application has been denied.
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,
W. DEAN PF
Executive Oo
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