DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 7444-09
4 June 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 2 June 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 29 August 1972 at age 19. You received nonjudicial
punishment on three occasions and were convicted by summary
court-martial (SCM) for three instances of unauthorized absence
(UA) from your unit for periods totaling 28 days and two
instances of willfully disobeying a lawful order. After your SCM
you were counseled regarding your misconduct and warned that
further offenses could result in administrative separation. On
16 September 1975 you began a 67 day period of UA from your unit
until you were apprehended on 18 November 1975 by civil
authorities in Lexington, Kentucky. On 8 December 1975 you began
a 35 day period of UA from your unit until you were again
apprehended on 12 January 1976 by civil authorities in Lexington,
Kentucky. On 12 March 1976, you were convicted in civil courte ef
first degree attempted robbery and second degree assault in
Fayette Circuit Court, Lexington, Kentucky. The sentence imposed
was confinement in the state penitentiary for a maximum term of
seven years at hard labor for each count to run consecutively.
You were notified of pending administrative discharge processing
with an other than honorable (OTH) discharge due to misconduct.
You waived all of your procedural rights, including your right to
an administrative discharge board (ADB). On 10 August 1976, you
received the OTH discharge for misconduct due civil conviction.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board found that
these factors were not sufficient to warrant recharacterization
of your discharge given the seriousness of your misconduct that
resulted in a civil conviction, three NJPs, and a SCM. Finally,
the Board noted that you waived the right to an ADB, your best
opportunity for retention or a better characterization of
service. 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,
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