DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 6004-10
18 March 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 9 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
injustice.
You enlisted in the Marine Corps and began a period of active
duty on 18 September 1973 at age 18. You received nonjudicial
punishment (NJP) on three occasions from 3 Boral te 11 Jume 1e74
for two instances of disobeying a lawful order, failure to go to
your appointed place of duty and unauthorized absence (UA) from
your unit for a period of four days. On 26 August 1974, you were
convicted by special court-martial (SPCM) of wrongful possession
of 24.2 grams of marijuana. The sentence imposed was confinement
for three months and forfeiture of pay. On 10 December 1974, you
received NUP for two instances of insubordinate conduct toward a
superior noncommissioned officer. On 20 January 1975, you again
received NIP for UA from your unit for a period of 28 days. On
25 July 1975, you received a letter of notification of proposed
disciplinary action for three instances of UA from your unit for
periods totaling five days and escaping arrest. On 25 duly 1975,
you submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for the
charges. 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 6 August 1975 you were
separated with a discharge 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 NUPs, a 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. 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,
\SvaQef
W. DEAN PF
Executive Diwyecter
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