DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 2739-10
26 January 2011
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, Unibed
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 fhe
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 on 21 July 1971 at age 18 and served
without disciplinary incident until 29 August 1973, when you were
convicted by special court-martial (SPCM) of three periods of
unauthorized absence (UA) totalling 59 days. You were sentenced
to a $400 forfeiture of pay, reduction to paygrade E-2, and
confinement at hard labor for two months. On 4 October 1973,
three days after being released from confinement, you began
another period of UA that was not terminated until 1 February
1974. The disciplinary action taken, if any, for thie 120 day
period of UA is not reflected in the record.
On 4 September 1974 you received nonjudicial punishment (NJP) for
an eight day period of UA. On 6 September 1974 you missed the
movement of your ship because you were in a UA status that was
not terminated until 16 October 1974. As a result, on 17 October
1974, you submitted a written request for an other than honorable
discharge in order to avoid trial by court-martial for the
foregoing 40 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 13
December 1974 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 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. Finally, 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. 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 Lust ice.
Sincerely,
W
. DEAN P
Executive
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