DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
‘ 2 NAVY ANNEX
WASHINGTON DC 20370-5100 REC
Docket No: 11194-10
4 November 2010
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 3 November 2010. 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 4 May 1998, at age 24. On 26 February 2005, you were
charged with larceny of government funds in the amount of
$13,902.76, failure to obey a lawful order, stealing U.S.
currency in the amount of $13,902.76, intent to defraud, and
submitting a false claim for reimbursement of per diem, lodging
and incidental entitlements. Subsequently, on 1 April 2005, you
submitted a written request for an administrative discharge in
order to avoid trial by court-martial for the pending charges.
Prior to submitting this request for discharge, you conferred
with a qualified military lawyer, were advised of your rights,
and warned of the probable adverse consequences of accepting such
a discharge. Your request for discharge was granted and on 22
April 2005, you received an other than honorable discharge in
lieu of trial by court-martial. 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.
The Board, in its review of your 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 an upgrade of your
reentry code or recharacterization of your discharge because of
your misconduct, 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
yeceived 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.
You are advised that since your discharge is less than 15 years
old, you may petition the Naval Discharge Review Board (NDRB) for
an upgrade. I have enclosed NDRB’s application form (DD Form
293) for your convenience.
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,
Wee
W. DEAN
Executive
Enclosure
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