DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 019-10
21 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 15 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 Corp and began a period of active duty
on 28 June 1968 at age 20. On 22 December 1968, you were in an
unauthorized absence (UA) status from your unit. On 20 December
1971, you were confined in the Erie County Jail, Buffalo, New
York, on civil charges of transporting and forgery of U.S.
Treasury checks. You were released on 27 October 1972 and failed
to return to the military. On 14 May 1974, you were returned to
military authority by the Allegheny County Jail, in Pittsburgh,
Pennsylvania. You were being held on charges of armed robbery
and corrupting the morals of a minor. On 19 June 1974, you
submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for the
foregoing charge of UA. 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 7 July
1974, you were again UA from your unit until you were apprehended
by civil authorities in Pittsburgh, Pennsylvania, on 9 July 1974.
On 2 August 1974, 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 period of UA that totaled over
five years 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. Finally, no
discharge is upgraded merely because of the passage of time.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
4
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,
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