DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 12502-10
19 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 17 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 Navy and began a period of active duty on
30 April 1973 at age 18. On 18 March 1976, you were convicted in
Harrisson County court, Harrisson County, Mississippi of wrongful
possession of marijuana and drug paraphernalia. You were
sentenced to pay a fine of $450.00. On 19 March 1976, you
received nonjudicial punishment (NUP) for willfully disobeying a
superior officer. On 20 May 1976, you were in an unauthorized
absence status from your unit for a period of 223 days until you
were apprehended by the Federal Bureau of Investigation on 29
December 1976. Based on the information currently contained in
your record it appears that you submitted a written request for
an other than honorable (OTH) discharge in order to avoid trial
by court-martial. Prior to submitting this request you would
have 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. On 1 March 1977,
your request was granted and you were separated with an OTH
discharge. 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 entire record and application
carefully weighed all potentially mitigating factors, such as
your youth and overall record of service. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your misconduct that resulted in a civil conviction, one NUP, a
period of UA that lasted over seven months and 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. The Board 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. Finally, there is no provision of law or in Navy
regulations that allows for recharacterization of service due
solely to the passage of time. 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,
Lo ean§
W. DEAN PFE
Executive Di
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