DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
REC
WASHINGTON DC 3 =E
20370-5100 Dooket No: 09118-10
5 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 on 17 January 1968, at the age
of 17. On 9 February 1968, you received nonjudicial punishment
(NUP) for violation of a regulation by smoking without
permission. On 27 September 1968, you received NJP for being in
an unauthorized absence (UA) status for 17 days. On 18 April
1969, you received NUP for failing to maintain a clean rifle. On
30 April 1970, you received NUP for being absent from your
appointed place of duty, and disobeying a direct order. On
18 June 1970, you received NJP for two incidents of being UA. On
5 April 1971, you were convicted by civilian court in Adams
County, Nebraska, of possession of marijuana. You were sentenced
to a fine of $147, and two years probation. On 23 June 1970, you
commenced a period of UA that lasted 52 days. On 24 August 1970,
you commenced a second period of UA that lasted 176 days. On
12 May 1971, you requested a good of the service 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 were warned of the probable adverse consequences of accepting
such a discharge. Your request for discharge was granted and on
4 June 1971, you received an other than honorable discharge (OTH)
for the good of service to avoid trial by court-martial. Asa
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 service. Nevertheless, the Board concluded these factors
were not sufficient to warrant recharacterization of your
discharge because of your five NUP’s, UA totaling over seven
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 efficial 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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