DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 7395-10
1 April 2011
your application for correction of your
This is in reference to
title 10, United
naval record pursuant to the provisions of
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. 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
lations and procedures applicable to the
administrative regu
proceedings of this Board. Documentary material considered by
together with all
the Board consisted of your application,
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
11 February 1971 at age 19. You received nonjudicial punishment
(NIP) on three occasions for three instances of failure to obey a
lawful order, six instances of unauthorized absence (UA) from
your unit for a period totaling 60 days, dereliction of duty,
three instances of breaking restriction and insubordinate conduct
toward a superior noncommissioned officer. On 26 May 1973 you
were UA from your unit for a period of 114 days until you
surrendered on 17 September 1973. On 15 October 1973, you were
UA from your unit for a period of two days until you surrendered
on 17 October 1973. On 21 November 1973, you were again UA from
your unit for a period of 63 days until you surrendered on 23
January 1974. On 13 February 1974, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for foregoing UA 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 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 20 March 1974 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 three NUJPs, periods of UA that
totaled over seven months, 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. Finally, the Board 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. 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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