DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 00633-10
27 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 21 October 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 active duty in the Marine Corps on 12 November 1968,
and served without any disciplinary incident until 17 March 1969,
when you received nonjudicial punishment (NJP) for an
unauthorized absence (UA) and failure to comply with regulations.
Shortly thereafter, you received the following NJP'’s: on 17
September 1969, for two specifications of failure to obey a
lawful order; on 14 October 1969, for failure to obey a lawful
order; on 19 November 1969, for disrespect; and on 2 December
1969, for failure to obey a lawful order and failure to go to
your appointed place of duty. In addition, you were pending a
court-martial for UA in excess of six days, willfully disobeying
a lawful order, and assault. You requested through counsel, to
be administratively separated to escape trial by court-martial.
Therefore, on 16 April 1970, you were separated with an other
than honorable discharge and an RE-4 reenlistment code, in lieu
of trial by court-martial. 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 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 and frequency 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,
Wises
Executive Or
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