DEPARTMENT OF THE NAVY —
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 4788-093
26 April 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 20 April 2010. 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
injustice.
You enlisted in the Marine Corps on 23 August 1972 at age 23.
About five months later, on 30 January 1973, you were placed on
legal hold pending an administrative discharge due to procurement
of a fraudulent enlistment. However, on 11 February 1973, you
began a period of unauthorized absence {UA) that was not
terminated until 2 September 1975, when you were apprehended by
civil authorities. During this period of UA you were also
declared a deserter.
On 17 November 1975 you submitted a written request for an other
than honorable discharge in order to avoid trial by court-martial
for the foregoing period of UA totalling 933 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. 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 3 December 1975 you
were issued an other than honorable discharge.
The Board, in its review of your entire record and application
carefully weighed ali potentially mitigating factors, such as
your youth, desire to upgrade your discharge, and assertion that
your period of UA was due to a death in the family.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your lengthy period of UA from the
Marine Corps, which resulted in 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. 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.
Consequentiy, 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,
\Soa’
W. DEAN PFETF
Executive e
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