DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 3027-10
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
inj uatice.
You enlisted in the Marine Corps on 7 February 1972 at age 18 and
served without disciplinary incident until 14 November 1972, when
you were convicted by special court-martial (SPCM) of wrongful
possession of marijuana and sentenced to confinement at hard
labor for 30 days and a $192 forfeiture of pay.
On 26 April 1973 you received nonjudicial punishment (NJP) for a
five day period of unauthorized absence (UA). Shortly
thereafter, on 21 July 1973, you began a period of UA that was
not terminated until 28 February 1974. In May 1974 you received
NIP for a one day period of UA. During the period from 19 June
to 7 November 1974 you were again in a UA status on two more
occasions.
Although you were declared a deserter during two of the three
periods of UA, only the UA charges were referred for trial. AS &
result, on 19 March 1975, you submitted a written request for an
other than honorable discharge in order to avoid trial by court-
martial for the three foregoing periods of UA totalling 376 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 27 March 1975 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 ap hard labor. On 3 April 1975 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 told that your discharge
would be upgraded six months after your separation since you were
not convicted by a court-martial. 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 two NJPs, 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 Marine Corps
when your request for discharge was granted and you should not be
permitted to change it now. Finally, no discharge is upgraded
due solely to the passage of time. 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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