DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5160
TAL
Docket No: 5283-10
3 February 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 2 February 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
ieriuebLee:.
You enlisted in the Marine Corps and began a period of active
duty on 8 August 1973 at age 19. You received nonjudicial
punishment on five occasions for three instances of unauthorized
absence (UA) from your unit totaling nine days, failure to go to
your appointed place of duty, and three instances of disobeying a
lawful order. From 7 March through 19 April 1975, you were UA
from your unit on four occasions totaling a period of 13 days.
On 3 June 1975, you submitted a written request for an other than
honorable (OTH) discharge in order to avoid trial by court-
martial for the foregoing charge 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. Your request
was granted and the commanding officer directed your 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
20 June 1975, 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 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 five NJPs 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 vapproved. 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. Finally, there is no provision of
law or in Navy regulations that allows for the 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 efficial 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 Din
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