DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 6269-10
16 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 Corp and began a period of active duty
on 28 May 1971 at age 22. On 13 February 1973, you were
convicted by summary court-martial of unauthorized absence (UA)
from your unit for a period of 56 days. On 21 October 1873, you
received nonjudicial punishment (NJP) for failure to go to your
appointed place of punishment. On 23 September 1974, you again
received NUP for failure to go to your appointed place of duty.
On 17 January 1975, you were convicted by special court-martial
(SPCM) of four instances of UA from your unit for a period
totaling 30 days. The sentence imposed was forfeiture of pay,
reduction in paygrade, and one month confinement. On 7 March
1975, you were again UA from your unit until you surrendered on
28 May 1975, a period of 82 days. On 30 May LS75, 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
separation authority 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 12 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 a period of UA totaling over
five months, two NUPs, a SCM, 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. Finally, in regard to your contention that the Marine
Corps retained you beyond the expiration of your contract; out of
your four year contract your total active service was, three
years, six months and 12 days. 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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