DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5196-09
8 April 2010
This is in reference to your application for correction of your
aval 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, congidered your
application on 31 March 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 and began a period of active
duty on 12 March 1984 at age 21. On 24 August 1984, you received
nonjudicial punishment (NIP) for three instances of unauthorized
absence (UA) and failure to go to your appointed place of duty.
On 21 November 1984, you were convicted by special court-martial
of ten instances of UA and failure to go to your appointed place
of duty. On 3 December 1984, you were UA from your unit for a
period of 51 days, until you surrendered on 22 January 1985.
On 1 March 1985 you submitted a written request for an other than
honorable (OTH) discharge in order to avoid trial by court-
Martial for the foregoing 51 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. On 11 March 1985 your request was granted and the
commanding officer was directed to issue you an OTH discharge.
Ae 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 11 March
1985 you were discharged under OTH conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service, and desire to upgrade your
discharge. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of ‘your misconduct that resulted in one
NIP, one SPCM, and 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 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 ail 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,
Executive
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