DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5219-09
8 April 2010
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the 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 31 March 2010. 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 materiai error or
injustice.
You enlisted in the Marine Corps and began a period of active
duty on 6 April 1971 at age 20. On 25 August 1971, you received
nonjudicial punishment (NUP) for unauthorized absence (UA) from
your unit for a period of three days. On 24 September 1971, you
were UA from your unit for a period of 30 days until you
surrendered on 24 October 1971. On 5 November 1971, you were UA
from your unit for a period of 76 days until you surrendered on
20 January 1972. On 18 February 1972, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for the pending charges of UA.
Prior to submitting this request for discharge, you conferred
with a qualified military lawyer, were advised of your rights,
and were warned of the probable adverse consequences of accepting
such a discharge. On 6 April 1972 your request was granted and
‘the commanding officer was directed to issue you an OTH
discharge. 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 24
August 1973 you were separated under OTH conditions.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge given the seriousness of your misconduct that
resulted in periods of UA that totaled over three months and
request for discharge. The Board believed that considerable
clemency was extended to you when your request for discharge was
approved. The Board also 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. Finally, there is no provision of law or in Navy
regulations that allows for recharacterization of service due
solely to the passage of time. 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,
\g
W. DEAN
Executive Wh tor
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