DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 070-10
12 October 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 6 October 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
22 January 1988 at age 32. You received nonjudicial punishment
(NUP) on three occasions for three specifications of unauthorized
absence (UA) and wrongful use of a controlled substance. On 16
December 1989, you were UA from your unit until you were
apprehended by the Los Angeles, California police department, a
period of 1,519 days. On 31 March 1994, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for the foregoing period 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. On 13 May 1994, your request was granted and the
commanding officer was directed to issue you an 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.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service, and desire to upgrade your
discharge. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of your misconduct that resulted ina
period of UA that lasted over four years and request for
discharge. The Board believed that considerable clemency was
yextended to you when your request for discharge to avoid trial by
court-martial was approved. The Board concluded that you
#eceived' 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.
aThe 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,
\WNuS
W. DEAN PF
Executive
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