DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 04063-1090
12 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 6 January 2011. 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 3 December 1973, and served
without disciplinary incident until 19 February 1974, when you
received nonjudicial punishment (NUP) for failure to obey a
lawful order. Shortly thereafter, you received the following
disciplinary action: on 23 June 1974, you received NIP for
assault; on 23 June 1975, you received NUP for an unauthorized
absence (UA), and misbehavior as a sentry; on 26 November 1975,
you received NJP for two specifications of UA; on 10 February
1976, you received NJP for three specifications of UA; and on 14
July 1976, you were convicted at a special court-martial (SPCM)
of three specifications of UA, and misbehavior of a sentry. Your
sentence included a bad conduct discharge. Your SPCM was set
aside due to a procedural error. You continued your misconduct
by going UA and were pending a court-martial for seven
specifications of UA. However, you requested through counsel, to
be separated with an undesirable discharge to escape a trial by
court-martial. Therefore, on 27 May 1977, you were separated
with an undesirable discharge and an RE-4 reenlistment code. As
aA result of this action, you were spared the stigma of another
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 of your misconduct.
‘Further, there is no provision in the law or regulations that
‘allows for recharacter#zation 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,
W. DEAN PFE
Executive Dir oO
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