DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 11991-1090
15 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 1552.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 10 August
2011. 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 4 April 1967, and during the next
three years, you received two nonjudicial punishments, and two special
courts-martial. Your offenses included unauthorized absences, failure
to obey lawful orders in a combat zone, and disrespect. You were then
notified that your commanding officer was recommending you for an
administrative separation with an undesirable discharge (UD) due to
misconduct. You elected to have your case heard by an administrative
discharge board, which met and found you committed misconduct, and
recommended a UD.
Shortly thereafter, on 14 July 1970, you were separated. You received
a UD and an RE-4 reenlistment code due to misconduct.
In April 1977, you appealed to the Department of Defense, Special
Discharge Review Program due to Public Law 95-126, which revised
standards for those who received less than honorable discharges for
service during the Vietnam era.’ As a result of this program,
+ On 16 September 1974, President Ford issued Proclamation 4313 and
Executive Order 11803 establishing a clemency program covering four
categories of persons: fugitives, both draft offenders and military
discharges were upgraded to general or honorable characterization on a
case by case basis, in the spirit of forgiveness and compassion. On
11 July 1977, your case was approved and upgraded to a general
discharge. However, regardless of the type or characterization of
discharge, the Department of Veterans Affairs has the right to deny
benefits based on Title 10, United States Code Sections 1553 and
3103(a)?. Persons whose discharges fall into the statutory bars of
section 3103 would not be considered eligible for veteran
entitlements.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as your
youth and Vietnam combat service. WNevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization of
your discharge because of the seriousness of your misconduct.
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,
a Door
W. DEAN PFET
Executive Dineac
absence offenders, convicted draft offenders and former service
personnel with undesirable or bad conduct discharges for unauthorized
absences. Only individuais who had committed a selective service law
or military offense between 4 August 1964 and 28 March 1973, were
eligible.
2 Section 3103(a) consists of bars to benefits, to include: discharge
or dismissal by reason of the sentence of a general court martial,
discharge as a conscientious objector who refused to perform military
duty or refused to wear the uniform or otherwise to comply with lawful
orders of competent military authority, discharge as a deserter,
discharge or dismissal of an individual during any period of
hostilities as an alien, or in the case of an officer, the dismissal
by resignation for the good of the service.
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