DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 2686-10
26 January 2011
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 20 January 2011. 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
ifijuetice.
You enlisted in the Navy on 26 September 1990 at age 20 and began
a period of active duty on 28 November 1990. You served without
disciplinary incident until 28 March 1991, when you received
nonjudicial punishment (NUP) for wrongful use of cocaine. About
four months later, on 2 July 1991, you were convicted by special
court-martial (SPCM) of absence from your appointed place of
duty, three periods of unauthorized absence (UA) totalling 79
days, and wrongful use of marijuana and cocaine. You were
sentenced to a $754 forfeiture of pay and reduction to paygrade
E-1. Shortly thereafter, on 18 July 1991, you began another
period of UA that was not terminated until 26 November 1991.
Although you were declared a deserter during this period of UA,
only the UA charges were referred for trial.
Bs a result of the foregoing, on 3 December 1991, you submitted a
written request for an other than honorable discharge in order to
avoid trial by court-martial for a 131 day 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. Subsequently, 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 27 February 1992
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. It also
considered your assertion that you were suffering from a mental
illness at the time of your discharge. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your drug-related misconduct and repetitive and lengthy
periods of UA from the Navy, which also resulted in an NUP, a
SPCM, and 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 Navy when your request for discharge was granted and you
should not be permitted to change it now. Finally, there is no
documented evidence in the record, and you submitted none, to
support your assertion of suffering from a mental illness.
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,
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