DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 8466-10
15 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
injustice.
You enlisted in the Navy and began a period of active duty on
9 January 1978 at age 18. On 7 August 1979, you were convicted
by special court-martial (SPCM) of five instances of unauthorized
absence (UA) from your unit for a period totaling 105 days. The
sentence imposed was confinement for 35 days, a forfeiture of pay
and reduction in paygrade. On 18 October 1979 you were UA from
your unit until you were apprehended by the Portland, OR, police
department on 27 April 1980, a period of 313 days. Based on the
information currently contained in your record it appears that
you submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for the
foregoing period of UA. Prior to submitting this request you
would have 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. On 24 June
1980, your request was granted and you were separated with an 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.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service, and desire to upgrade your
discharge. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given the seriousness of your misconduct that resulted in a SPCM,
~« periods of UA a totaled over one year and one month and
"request for discharge. The Board believed that considerable
¥ clemency was exténded to you when your request for discharge to
“avoid trial by gourt-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. 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,
W. DEAN das
Executive ed tvo
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