DEPARTMENT OF THE NAVY
BGARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 06732-09
26 February 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 24 February 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 on 20 January 1983, and served
without disciplinary incident until 27 September 1983, when you
received nonjudicial punishment (NUP) for an unauthorized absence
(UA) in excess of 25 days. Shortly thereafter, you received the
following disciplinary actions: on 15 October 1983, you received
NIP for UA for three days; and on 21 February 1984, you were
convicted at a summary court-martial for four specifications of
UA.
Furthermore, you were UA from 9 April to 17 July 1984.
Therefore, you were pending a court-martial for charges of UA.
However, you requested through counsel, to be separated to escape
a trial by court-martial. Therefore, on 3 December 1984, you
were separated with an other than honorable discharge due to your
misconduct and an RE-4 reenlistment code, in lieu of a 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 entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and belief that enough time has elapsed to warrant
upgrading your discharge. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge because of the seriousness of your misconduct.
Further, there is no provision in the law or regulations that
allows for recharacterization of service due solely to the
passage of time. Finally, :the Board believed that considerable
clemency was extended to you when your request for discharge to
avoid trial by court-martial was approved. It was clear to the
Board 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. Accordingly, your
application has been denied. The names and votes of the members
of the panel will be furnished upon request.
Tt 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,
RD. 28
ROBERT Sm
Acting Executive Director
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