DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 REC
Docket No: 07171-10
5 April 2011
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the 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 30 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 Navy and began a period of active duty on 26
May 1977. On 3 October 1977, you received nonjudicial punishment
(NOP) for being in an unauthorized absence (UA) status for three
days. On 5 December 1977, you received NUP for being UA two
days. Between 14 March and 4 June 1978, you commenced three
periods of UA, the first period lasting six days, the second
period lasting 27 days, and the third period lasting two days,
totaling 35 days. On 22 June 1978, you received your third NUP
for those periods of UA. Your misconduct continued, and between
3 July 1978 and 5 July 1979, you were UA on nine occasions,
totaling 124 days. Your record is incomplete, but apparently,
you requested an administrative discharge in order to avoid trial
by court-martial for the periods of UA. Prior to submitting this
request for discharge, you conferred with a qualified military
lawyer, were advised of your rights, and were warned of the
probable adverse consequences of accepting such a discharge.
Your request for discharge was granted and on 11 September 1979,
you received an other than honorable (OTH) discharge in lieu of
trial by court-martial. 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.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth, three
NJP's for UA, and your request for discharge. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of your UA’s
totaling over four ’months, and request for discharge. The Board
believed that gonsiderable clemency was extended to you when your
request for discharge was approved. The Board also concluded
that you received the benefit of your bargain with the Navy when
your request for discharge was granted and should not be
permitted to change it now. Further, you are advised that there
is no provision in the law or Navy regulations that allows for
recharacterization of your discharge automatically due solely to
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,
\oWaas
W. DEAN PF]
Executive
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