DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 6258-09
2 June 2010
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 16, 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 1 June 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 6 March 1975 at age 25. You
served without disciplinary incident until 8 December 1975, when
you received nonjudicial punishment (NOP) for a six day period of
unauthorized absence (UA).
On 23 January and again on 10 March 1976 you received NUP for two
periods of UA totalling 24 days. Shortly thereafter, on 15 March
1976, you began another period of UA that was not terminated
until 13 September 1976. During this period of UA you were also
declared a deserter and the charges were referred for trial by
court-martial. As a result, on 14 September 1976, you submitted
a written request for an other than honorable discharge in order
to avoid trial by court-martial for the foregoing period of UA
totalling 120 days. 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 17
September 1976 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 serving in the Marine Corps caused
a hardship on your family. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge because of the seriousness of your repetitive
misconduct which resulted in three NJPs and lengthy period of UA
which resulted in 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 no evidence in the record, and you
submitted none, to support your assertion. 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,
Ly
W. DEAN PFE
Executive Dye rc
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