DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 12857-09
22 September 2010
Ek,
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 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 24 August 1992 at age 22 and
served for about a year and four months without disciplinary
infraction. However, on 10 February 1994, you were counselled
regarding deficiencies in your performance and conduct,
specifically, exercising poor judgment by not reporting off leave
on time and being in an unauthorized absence (UA) status. On 9
March 1994 you received nonjudicial punishment (NUP) for a 26 day
period of UA and were awarded restriction and extra duty for 14
days and a $194 forfeiture of pay. On 18 March 1994 you were
again counselled regarding deficiencies in your performance and
conduct due to being absent from your appointed place of duty.
On 9 June 1994 you were convicted by summary court-martial (SCM)
of two periods of failure to go to your appointed place of duty
and breaking restriction. You were sentenced to a $594
forfeiture of pay, restriction for 60 days, and reduction to
paygrade E-1. During the period from 4 October to 1 November
1994, you were again counselled on three more occasions for being
absent from your appointed place of duty, dropped from the rifle
range, making unsatisfactory progress regarding your weight
control, leaving your room unlocked, and having a female enter
your room after hours. On 9 November 1994, you received your
second NUP for failure to go to your appointed place of duty and
were awarded restriction and extra duty for 30 days and a $388
forfeiture of pay, which was suspended for six months. Shortly
» thereafter, on 29 November 1994, you were counselled due to your
‘lack of respect toward your superiors and failure to follow
orders ina timely manner.
On 5 January 1995 you were notified of pending administrative
separation action by reason of misconduct due to a pattern of
misconduct. After consulting with legal counsel you waived your
right to present your case to an administrative discharge board
(ADB). On 23 January 1995 your commanding officer recommended
discharge under other than honorable conditions by reason of
misconduct due to a pattern of misconduct as evidenced by your
record of misconduct. On 13 February 1995 the discharge
authority approved this recommendation and directed separation
under other than honorable conditions by reason of misconduct and
on 22 February 1995 you were so discharged.
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. It also
considered your counsel's documentation provided in support of
your request for a medical discharge due to a diagnosed chronic
lower back syndrome, and the request for a personal hearing.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your repetitive misconduct which
resulted in two NUPs, SCM, and numerous counselling and warnings
of an administrative discharge. The Board concluded that you
were given an opportunity to defend yourself, but waived your
procedural right to present your case to an ADB. Further,
applicable regulations state, in part, that even if a Sailor is
processed for separation by reason of a medical or mental
condition, if the Sailor meets the requirements of another
reason, such as misconduct, the Sailor will be separated for the
latter reason. Finally, Board regulations state that personal’
appearances/hearings are not granted as a right, but only when
the Board determines that such an appearance will serve some
useful purpose. In this regard, the Board determined that a
personal appearance/hearing was not necessary and considered your
case based on the evidence of record. 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,
\p. Doan
W. DEAN PFRYF
Executive D or
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