DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5106
TOR
Docket No: 11270-10
4 August 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 i552.
A three-member panel of the Board for Correction of Navai
Records, sitting in executive session, considered your
application on 2 August 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 30 September 1977 at age 17.
On 9 August 1978 you were convicted by summary court-martial
(SCM) of two periods of unauthorized absence (UA) totalling 56
days. ,
On 5 September 1978 you began another period of UA that was not
terminated until you were apprehended by civil authorities on 22
March 1985. Although you were declared a deserter, only the UA
charges were referred for trial. As a result, on 9 April 1985,
you submitted a written request for an other than honorable
discharge in order to avoid trial by court-martial for the two
foregoing period of UA totalling 2,390 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 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 17 April 1985 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, post service conduct, and desire to upgrade your
discharge. It also considered your assertion that the
characterization of your discharge was harsh. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your repetitive and lengthy periods of UA from the Marine
Corps, which also resulted in a court-martial conviction 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,
\oQnans
W. DEAN P E
Executive Wirector
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