PEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 10768-10
23 June 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.
BR three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 22 June 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 Marine Corps and began a period of active
duty on 31 January 1979 at age 19. On 22 January 1980 you were
convicted by special court-martial (SPCM) of stealing $20.00 from
a U.S. Army soldier, and two instances of failure to go to your
appointed place of duty. The sentence imposed was confinement
for 45 days, reduction in paygrade and a forfeiture of pay. On
22 August 1980 your unit reported you as being in an unauthorized.
absence (UA) status. On 12 October 1982, you were convicted in
civilian court in Ohio of carrying a concealed weapon, receiving
stolen property, kidnapping and four counts of aggravated
robbery. You were sentenced to four to 25 years confinement. You
were paroled on 1 July 1985. On 3 September 1985, you submitted
a written request for an other than honorable (OTH) discharge in
order to avoid trial by court-martial for the period of UA from
your unit totaling 1,206 days. 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. Your request was
granted and the commanding officer directed your 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. On 20
September 1985 you were separated with a discharge under OTH
conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth and overall record of service. 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 totaling
over three years and three months, a civil conviction and 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 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
Executive lector
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