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NAVY | BCNR | CY2010 | 10982-10
Original file (10982-10.pdf) Auto-classification: Denied
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5106

 

TIR
Docket No: 10982-10
20 July 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 19 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 enlisted in the Marine Corps on 6 May 1968 at age 17. You
served without disciplinary incident until 19 November 1968, when
you received nonjudicial punishment (NJP) for a 15 day period of
Unauthorized absence (UA). About six months later, on 26 May
1969 you received NUJP for absence from your appointed place of
duty, On 9 June 1969 you received your third NUP for breaking
restriction, disobedience, and failure to obey a lawful order.
Shortly thereafter, on 25 June 1969, you were convicted by
general court-martial (GCM) of a 12 day period of UA.

While serving in the Republic of Vietnam, on 29 December 1969,
you received NUP for absence from your appointed place of duty
and on 3 March 1970 you were convicted by summary court-martial
(SCM) of sleeping on post. On 27 April 1970 you were convicted
by special court-martial (SPCM) of six periods of failure to go
to your appointed place of duty. You were sentenced to a $350
forfeiture of pay, confinement at hard labor for five months, and
a bad conduct discharge (BCD). Nonetheless, you began another
period of UA that was not terminated until January 1971. As a
result, on 27 January 1971, you submitted a written request for
an other than honorable discharge in order to avoid trial by
court-martial for a 74 day period of UA. 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 22 March 1971 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 youth' 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
of your repetitive misconduct which occurred while serving during
a time of war and resulted in four NJPs, three court-martial
convictions, a BCD, 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,
lw. Dow

W. DEAN PFE
Executive Director

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