DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 06948-10
19 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 16 March 2011. 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 on 4 March 1974, and served
without disciplinary incident until 20 July 1976, when you
received nonjudicial punishment for an unauthorized absence (UA) .
Shortly thereafter, you were convicted at a special court-martial
for UA in excess of 75 days. In addition, you were pending a
court-martial for two specifications of UA totaling 352 days.
However, you requested through counsel, to be separated to escape
a trial by court-martial. Your request was approved and on 27
June 1978, you were separated with an other than honorable (OTH)
discharge and an RE-4 reenlistment code, in lieu of a trial by
court-martial. As a result of this action, you were spared the
stigma of court-martial conviction and the potential penalties of
a punitive discharge and confinement at hard labor.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your claim that you had served your time and punishment.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge
because of the seriousness of your misconduct. Furthermore, the
Board believed that considerable clemency was extended to you
when your request for discharge to avoid trial by court-martial
was approved. It was clear to the Board 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. 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,
a
IF
Executive Dilyedt
Enclosure
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