DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN .
Docket No: 12004-10
28 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 28 July 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 7 November 1972, and served
without disciplinary incident until 26 April 1973, when you
received nonjudicial punishment (NUP) for unauthorized absence
(UA). Shortly thereafter, on 27 August 1973, you were convicted
at a special court-martial (SPCM) of UA in excess of 79 days. In
addition, you were pending another court-martial for UA in excess
of 414 days. However, you requested through counsel, to be
separated to escape a trial by court-martial. Your request was
approved and on 24 December 1975, you were separated with an
other than honorable (OTH) discharge and an RE-4 reenlistment
code, in lieu of a trial by court-martial. As a result of this
action, you were spared the stigma of court-martial conviction
and the potential penalties of a punitive discharge and
confinement at hard labor.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and claim of injustice. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your misconduct. Furthermore, the Board believed that
considerable clemency was extended to you when your request for
discharge to avoid trial by court-martial was approved. It was
clear to the Board 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. 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,
W. DEAN PF
Executive r oO
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