DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SIN
Docket No: 12213-10
31 August 2011
This 1s 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 30 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 Navy and began a period of active duty on
21 September 1987. The Board found that based on the information
currently contained in your record, on 25 April 1989, you were
convicted by civil authorities of being an accessory to a felony,
fighting, disturbing the peace, using offensive language, and
assault. On 14 June 1989, you were sentenced to one year in
jail, probation, and fines. On 15 December 1989, you were
released from jail on your own recognizance. However, you failed
to report back to military authorities, and began a period of
unauthorized absence (UA) that lasted 234 days, ending on 5
February 1990. Although your record in incomplete, it appears
that you submitted a written request for an other than honorable
(OTH) discharge in order to avoid trial by court-martial for 234
days of UA. Prior to submitting this request for discharge, you
conferred with a qualified military lawyer, were advised of your
rights, and were warned of the probable adverse consequences of
accepting such a discharge. Subsequently, your request for
discharge was granted and, on 29 March 1990, you received an OTH
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 record
of service. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
given your misconduct that resulted in a civil conviction for
serious offense, charges being preferred to a court-martial for a
period of UA lasting over seven months, 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 received the benefit of your
bargain with the Navy when your request for discharge was granted
and 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.
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