DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 11790-10
16 September 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 teres member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 13 September 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 18 December 1972 at age 17
and served for about a year and four months without disciplinary
incident. However, on 23 April 1974, you received nonjudicial
punishment (NJP} for two specifications of assault, resisting
arrest, and wrongful possession of an illegal weapon. On 1 May
1974 you received NJP for absence from your appointed place of
duty. About two months later, on 18 July 1974, you were
convicted by special court-martial (SPCM) of two specifications
of disobedience and assault. You were sentenced to confinement
at hard labor for three months, a $400 forfeiture of pay, and
reduction to paygrade E-1. The confinement was suspended. for six
months. On 1 November 1974 you received your third NJP for
disrespect. Shortly thereafter, on 23 December 1974, you |
submitted a written request for an other than honorable discharge
in order to avoid trial by court-martial for disrespect,
disobedience, and assault. 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 27
January 1975 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. It also
considered your assertion of being encouraged to consume
alcoholic beverages which you believe was the result of your
misconduct. It further considered your character reference
letters provided in support of your case. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your repetitive misconduct which resulted in three NUPs, a
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. Further, there
is no evidence in the record, and you submitted none, to support
your assertion. 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 PFE
Executive D r
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