DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5832-10
4 March 2011
‘a :
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 March 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
imjusbice:.
You enlisted in the Marine Corp and began a period of active duty
on 30 April 1969 at age 18. On 5 November 1970, you received
nonjudicial punishment (NIP) for two instances of failure to obey
a lawful order. On 12 February 1971, you were convicted by
special court-martial (SPCM) of two instances of insubordinate
conduct toward a superior noncommissioned officer and two
instances of sleeping on post. On 17 May 1971, you were in an
unauthorized absence (UA) status from your unit until you
surrendered on 18 January 1973, a period of 612 days. On 2 March
1973, 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 ana 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 Vietnam 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 one NJP, a SPCM, a period of UA
that lasted over one year and eight months 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. Finally, no discharge is upgraded
merely because of 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,
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