DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 10229-10
8 July 2011
This ig 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 6 July 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 reenlisted in the Marine Corps on 25 February 1975 after
nearly two years and eight months of prior honorable service.
You continued to serve for about nine months without disciplinary
incident. However, on 4 November 1976, you received nonjudicial
punishment (NJP) for absence from your appointed place of duty.
About three months later, on 8 February 1977, you were convicted
by special court-martial (SPCM) of wrongful possession of a
loaded pistol in a privately owned vehicle and wrongfully
transporting a loaded pistol.
During the period from 22 July 1977 to 30 March 1978 you
committed the offenses of disobedience, two specifications of
disrespect, assault, dereliction of duty, communicating a threat,
and were in an unauthorized absence (UA) status for 235 days.
Although you were declared a deserter during your period of UA,
only the charge of UA was referred for trial along with the other
aforementioned misconduct. Subsequently, on 11 April 1978, you
submitted a written request for an other than honorable discharge
in order to avoid trial by court-martial for the foregoing
misconduct. 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. Subsequently, your request was
granted and the commanding officer was directed to issue you an
other than honorable discharge by reason of the good of the
service. 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 24 April
1978 you were issued an other than honorable discharge.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your prior period of satisfactory service, post service conduct,
and desire to upgrade your discharge. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
ef your misconduct which resulted in an NIP, SPCM, and your
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. Further, the Board
concluded 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.
€
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 P R
Executive tor
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