DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 13071-09
20 August 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 25 August 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 on active duty in the Marine Corps on 73 November
1972, and served without any disciplinary incident until you were
in an unauthorized absence status from 1 November 1973 to 17
January 1974, when you returned to military jurisdiction.
Therefore, you were pending a court-martial for the harge of UA.
In February 1974, through counsel, you requested to¥Separated in
lieu of a trial by court-martial, and your request was approved.
On 7 March 1974, you were separated with an other than honorable
discharge and an RE-4 reenlistment code due to your serious
misconduct and your fraudulent enlistment {you had a prior civil
conviction in 1970 and were sentenced to two years in jail for
assault and battery on a police officer, that you failed to
disclose). As a resuit 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 iabor.
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 Navy regulations that
allows 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 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,
Lo Nenu’
W. DEAN PF
Executive rv or
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