DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 7458-10
14 April 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 13 April 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
injusiiee:.
You enlisted in the Navy and began a period of active duty on
15 January 1974 at age 19. On 15 May and 12 June 1974, you
received nonjudicial punishment (NJP) for two instances of
unauthorized absence (UA) from your unit. On 10 October 1974,
you were convicted by special court-martial (SPCM) of two
instances of UA from your unit that totaled a period of 32 days.
The sentence imposed was confinement for 45 days. On 22 November
1974, you were again convicted by SPCM of two instances of UA
from your unit that totaled a period of 40 days. The sentence
imposed was confinement for three months and a forfeiture of pay.
The convening authority suspended all but six weeks of the
confinement and the forfeiture of pay for six months. On
13 January 1975, you were UA from your unit until you were
apprehended by civilian authorities in Charles City, Iowa, on
28 February 1975. On 14 March 1975, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for the pending charge. 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 27 March 1975 you were discharged under OTH
conditions.
The Board, in ifts 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 two NJPs, two SPCMs, periods of
UA that totaled over three 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. 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. Finally,
there is no provision of law or in Navy regulations that allows
for recharacterization of service 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,
\ Spoor a
W. DEAN BF R
Executive or
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