DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 595-11
21 October 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 19 October 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
26 December 1978 at age 18. On 26 April 1979, you received
nonjudicial punishment (NUP) for an unauthorized absence (UA)
from your unit for a period of six days. On 20 February 1980,
you received NUP for a UA from your unit for a period of 30 days.
On 16 May 1980, you were again UA from your unit until you
surrendered to military authority at March Air Force Base,
California on 6 January 1981, a period of 235 days. 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 23 March 1981, 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 two NJPs, periods of UA that
totaled over nine 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,
Sees
Executive D r
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