DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5700
TA
Docket No: 646-11
28 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 26 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
27 August 1985 at age 18. On 20 November 1985, you were in an
unauthorized absence (UA) status from your unit until you were
arrested in Canton Township, Ohio, on theft charges and returned
to military authority on 31 December 1985. On 14 January 1986,
you submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for the
forgoing 41 day period of UA charge and an additional charge of
misbehavior of a sentinel by sleeping on post. Prior to
submitting this request you 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 14 February 1986, 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 41 day period of UA 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. Finally, 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. 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,
LD Waerey
W. DEAN PFE
Executive Dine xr
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