DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 275-10
1 October 2010
This ig 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 21 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 4 January 1973 at age 22 and
served for a year and nine months without disciplinary incident.
However, on 18 September 1974, you were convicted by special
court-martial (SPCM) of a 14 day period of unauthorized absence
(UA). During the period from 26 to 29 November 1974 you were
again in a UA status for three days. However, the record does
not reflect the disciplinary action taken, if any, for this
period of UA.
On 20 August 1975 you began yet another period of UA that was not
terminated until you were apprehended by civil authorities on 20
September 1976. Although you were declared a deserter during
this period, only the UA charges were referred for trial. Asa
result, on 18 October 1976, you submitted a written request for
an other than honorable discharge in order to avoid trial by
court-martial for the foregoing period of UA totalling 396 days.
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 12 November 1976 your request was granted and the
commanding officer was directed to issue you an other than
honorable discharge by reason of the good of the service. 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 26 November 1976
you were issued an other than honorable discharge.
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. Nevertheless,
the Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your repetitive and lengthy periods of UA from the Marine
Corps, which also resulted in your 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 you should not be permitted to
change it now. 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,
W. DEAN TEE
Executive \Di Kéctor
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