DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 10471-09
7 July 2010
Dear Mr. Finch:
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 entered active duty in the Marine Corps on 28 February 1975,
and served without any disciplinary incident until 9 September
1975, when you received nonjudicial punishment for not being
alert while on post. Shortly thereafter, you were in an
unauthorized absence (UA) status from 1 April to 14 July 1977.
Therefore, you were pending a court-martial for the charge of UA.
However, you requested through counsel, to be separated to escape
trial by court-martial. Therefore, on 26 September 1977, you
were separated with an other than honorable discharge and an RE-4
reenlistment code, in lieu of 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 regulations 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 reguest 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 you should
not 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,
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