DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 9537-09
16 July 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 13 July 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 Navy on 30 January 1979 at age 18. You
served for about four months without disciplinary. infraction, but
on 9 April 1979, after breaking restriction, you were in an
unauthorized absence (UA) status on three occasions that was not
terminated until 22 January, 1980. During this period you were
declared a deserter, and the UA charges were referred for trial
by court-martial. As a result, you submitted a written request
for an other than honorable discharge in order to avoid trial by
court-martial for the three foregoing periods of UA totalling 236
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 3 March 1980 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 13 March
1980 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. Nevertheless,
the Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your repetitive and lengthy periods of UA from the Navy, 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 Navy when your request for discharge was granted and you
should not be permitted to change it now. 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 efficial 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,
LoS easy
W. DEAN P I
Executive Di or
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