DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 10451-09
7 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 1 July 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 26 September 1972, and served
without disciplinary incident until 8 August 1973, when you
received nonjudicial punishment (NJP) for sleeping on post.
Shortly thereafter, you received the following NUJP’s: on 27
August 1973, for provoking speech or gesture; on 11 September
1973, for an unauthorized absence (UA), and disobeying a lawful
order; and on 12 March 1974, for provoking speech or gesture, two
specifications of UA, willful disobedience, and intoxicated while
on duty. Additionally, on 20 March 1974, you were convicted at a
summary court-martial for three specifications of disobeying a
lawful order. You were pending a court-martial for willfully
disobeying a lawful order, assault, disrespect, and communicating
a threat. However, you requested through counsel, to be
separated to escape a trial by court-martial. Therefore, on 31
May 1974, you were separated with an other than honorable
discharge 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 of law or in regulation that allow
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 should 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.
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,
Least)
W. DEAN P
Executive Di nectior
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