DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 9498-09
18 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 16 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 reenlisted in the Navy on 25 May 1976 after more than three
years of prior honorable service. On 20 December 1977, you were
convicted by summary court-martial (SCM) for three instances of
unauthorized absence (UA) from your unit that totaled 67 days.
On 16 January 1978 you were UA until you surrendered on 15
February 1978, a period of 30 days. On 22 March 1978, you were
UA until you surrendered on 19 May 1978, a period of 58 days.
Based on the information currently contained in your record it
appears that you submitted a written request to be discharged for
the good of the service to avoid trial by court-martial for the
last two periods of UA. You conferred with a qualified military
lawyer, were advised of your rights, and warned of the probable
adverse consequences of accepting such a discharge.
Subsequently, your commanding officer forwarded his
recommendation that you be discharged for the good of the service
with an other than honorable (OTH) discharge. On 7 July 1978,
you received the OTH discharge for the good of the service. Asa
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 application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge given the seriousness of your misconduct that
resulted on one SCM, periods of UA that totaled over five months
and request for discharge to avoid trial. The Board believed
that considerable clemency was extended to you when your request
for discharge was approved. The Board also 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, there is no provision of law or in Navy
regulations that allow for recharacterization of service due
solely to the passage of time. Accordingly, 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,
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