DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 6473-09
2 June 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 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 9 October 1975 at age 17.
You served without. disciplinary incident until 28 May 1976, when
you received nonjudicial punishment (NJP) for wrongful possession
of marijuana. On 4 November 1976 you received NUP for failure to
obey a lawful order and absence from your appointed place of
duty.
On 22 April 1977 you received NUP for a two day period of
unauthorized absence (UA). During the period from 25 May to 25
July 1977 you were in a UA status on three more occasions for 31
days. On 25 August 1977 you began another period of UA that was
not terminated until 30 December 1977, when you were apprehended
by civil authorities. 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 21 March 1978, you submitted a
written request for an other than honorable discharge in order to
avoid trial by court-martial for the foregoing three periods of
UA totalling 31 days and desertion resulting from a 127 day
period of UA. 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 2 May 1978
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 for medical
reasons. It also considered your assertion that you were told
that if you stayed out of trouble for a year your discharge would
be automatically upgraded. 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 periods 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,
\ Wadd.)
W. DEAN P
Executive or
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