DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 8933-09
11 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 9 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 ail
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 Navy and began a period of active duty on 14
July 1976 at age 30. On 10 December 1976, you received
nonjudicial punishment (NIP) for unauthorized absence (UA) from
your unit and missing ship’s movement. On 30 March 1977, you
received NIP for a 24 day period of UA from your unit. On
1 April 1977, you were vA from your unit for a period of 169 days
until you were apprehended by Civil authorities on 17 September
1977. On 28 September 1977 you were again UA from your unit
until 2 October 1977, a period of four days. You submitted a
written request for an other than honorable (OTH) discharge in
order to avoid trial by court-martial for the foregoing periods
of UA totaling 173 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. On 13 December 1977
your request was granted and the commanding officer was directed
to issue you an OTH discharge. 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 21 December 1977 you were discharged under OTH
conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service, and desire to upgrade your
discharge. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of your misconduct that resulted in two
NUPs, lengthy periods of UA, and 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. The Board concluded that you received the benefit
of your bargain with the Navy when your request for discharge was
granted and should not be permitted to change it now. Finally,
no discharge is upgraded merely because of the passage of time.
Becordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
The Board believes that you may be eligible for veterans’
benefits which accrued during your prior period of honorable
service. However, your eligibility is a matter under the
cognizance of the Department of Veteran Affairs (DVA). In this
regard, you should contact the nearest DVA office concerning your
rights, specifically, whether or not you are eligible for
benefits based on this period of service.
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,
\ Ws ddd
W. DEAN PFRIFERR
Executive oO
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