DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
REC
WASHINGTON DC 20370-5100
Docket No: 08351-10
4 May 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 4 May 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 and began a period of active
duty on 14 February 1968, at age 19. On 4 February 1970, you
received nonjudicial punishment (NJP) for causing damage to a
government vehicle and building. On 17 February 1970, you were
convicted by a summary court-martial (SCM) of breaking
restriction. You were sentenced to confinement at hard labor for
30 days, and a reduction in pay grade. On 8 May 1970, you were
convicted by a second SCM of being in an unauthorized absence
(UA) status for 13 days. You were sentenced to a forte1ture: Cf
$100, and confinement at hard labor for 30 days. On 28 March
1970, you began a period of UA lasting 16 days. On 6 July 1970,
you began an additional UA period lasting 50 days. Subsequently,
on 2 November 1970, you submitted a written request for 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 warned of the probable adverse
consequences of accepting such a discharge. Your request for
discharge was granted and on 17 November 1970, 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, and
Vietnam combat service. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of your misconduct that resulted in one NUP,
convictions by two SCM’s, periods of UA totaling over two months,
and request for discharge. The Board believed that considerable
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 Marine Corps 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,
LY aha
Executive Di
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