DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 10655-09
19 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 14 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 Marine Corps and began a period of active
duty on 20 May 1973 at age 19. On 23 July 1975, you received
nonjudicial punishment for two instances of unauthorized absence
(UA) from your appointed place of duty. On 17 January 1976, you
were convicted by summary court-martial (SCM) of an attempt to
steal an automobile battery. On 30 January 1976, you were UA
from your unit for a period of 54 days until you were apprehended
by civil authorities on 25 March 1976. On 5 May 1976, you were
again UA from your unit for a period of 97 days until you
surrendered on 10 August 1976. On 18 August 1976, you submitted
a written request for an other than honorable (OTH) discharge in
order to avoid trial by court-martial for the foregoing charges.
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. Your request was granted and the commanding officer
directed your 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 8 September 1976 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 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 in a periods of UA that totaled
over five months 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.
Further, the Board concluded that you received the benefit of
your bargain with the Marine Corps when your request for
discharge was granted and 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,
Executive tor
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