DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 11222-09
2 September 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 September 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 on 15 April 1969 at age 17 and
served for about seven months without disciplinary infraction.
However, on 24 November 1969 you began a period of unauthorized
absence (UA) that was not terminated until 8 December 1969.
During this period of UA you were convicted by civil authorities
of public intoxication and sentenced to confinement for five
days. On 23 December 1969 you received nonjudicial punishment
(NIP) for the foregoing period of UA totalling 14 days.
Nonetheless, on 31 December 1969, you began another period of UA
that was not terminated until you were apprehended and confined
by civil authorities on burglary charges. During this period of
UA you were also declared a deserter. On 26 January 1970 you
were convicted by civil authorities of third degree burglary and
sentenced to confinement for one year. On 1 December 1970, upon
completion of civil confinement, you were returned to military
custody thus terminating a 334 day period of UA.
On 13 January 1971 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for the foregoing period of UA totalling 334 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. Subsequently, 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 2 February 1971 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, desire to upgrade your discharge, and assertion that
you were not afforded a chance to defend yourself. Nevertheless,
the Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your misconduct in both the military and civilian communities,
and especially your lengthy period of UA from the Marine Corps,
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 Marine Corps when your request for
discharge was granted and you should not be permitted to change
it now. Finally, there is documented evidence in the record that
is contrary to your assertion that you were not afforded an
opportunity to defend yourself. 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 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,
\OWaoes
W. DEAN PFHIF
Executive Diredter
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