DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 13215-09
3 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 Navy and began a period of active duty on
19 September 1990 at age 20. On 30 January 1992, you received
nonjudicial punishment (NJP) for wrongful use of marijuana. On
21 May 1992 you began a 161 day period of unauthorized absence
(UA) from your unit until you were apprehended on 29 October
1992. After your first NUP, you were counseled regarding your
misconduct and warned that further offenses could result in
administrative separation. Based on the information currently
contained in your record it appears that you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for the pending charge of
unauthorized absence from your unit. Prior to submitting this
request you would have conferred with a qualified military lawyer
at which time you would have been advised of your rights and
warned of the probable adverse consequences of accepting such a
discharge. Your request was granted and the separation authority
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 16 February 1993 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 over four months of UA 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. Finally, the Board
concluded that you received the benefit of your bargain with the
Navy 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,
Wears |
W. DEAN
Executive Diyre
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