DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 6098-10
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 15 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 aol
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 on 27 November 1974 at age 17
and served for a year and two months without disciplinary
incident. However, during a 12 month period from 6 January to 26
December 1976, you received nonjudicial punishment (NJP) on nine
occasions for five periods of absence from your appointed place
of duty, three specifications of failure to obey a lawful order,
being incapacitated for duty due to intoxication, sleeping on
watch, a three day period of unauthorized absence (UA), and
attempting to break into an automobile.
On 26 May 1977 you submitted a written request for an other than
honorable discharge in order to avoid trial by court-martial for
three periods of absence from your appointed place of duty,
disrespect, failure to obey a lawful order, and using provoking
words. 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. Subsequently, your request was
granted and the commanding officer was directed to issue you an
other than honorable discharge by reason of the good of the
service. 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 7 June 1977
you were issued an other than honorable discharge.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge. It also
considered your assertions regarding your period of service and
the characterization of your discharge, which included, but is
not limited to a review of your case by the Naval Discharge
Review Board, legal misrepresentation, disputes due to lack of
evidence, unfairness of discharge characterization based on minor
misconduct, and the subsequent discharge from the Marine Corps.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your repetitive and frequent
misconduct which resulted in nine NJPs and your 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 you should not be
permitted to change it now. Finally, the Board noted that there
was documented evidence in the record that is contrary to your
assertions. 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 all S€figial 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,
\ San 3
W. DEAN TeAE
Executive Dv tor
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