DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 08631-10
27 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. 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 on 20 January 1977, and served
without disciplinary incident until you were in an unauthorized
absence (UA) status from 16 June to 6 July 1977, and from 11 July
1977 to 29 June 1978, totaling 11 months and 20 days. Therefore,
you were pending a court-martial for UA. However, you requested
through counsel, to be separated to escape a trial by court-
martial. Your request was approved and on 7 August 1978, you
were separated with an other than honorable (OTH) discharge and
an RE-4 reenlistment code, in lieu of a trial by court-martial.
As a result of this action, you were spared the stigma of 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 claim the charges were a little harsh, that you surrendered
instead of being apprehended, and that your misconduct was not
violent in nature. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of the seriousness of your misconduct.
Furthermore, the Board believed that considerable clemency was
extended to you when your request for discharge to avoid trial by
court-martial was approved. It was clear to the Board that you
received the benefit of your bargain with the Marine Corps when
your request for discharge was granted and you 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 ph IKF
Da
Executive
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