DEPARTMENT OF FHE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100
SIN
Docket No: 01042-11
9 November 2011
This is 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 8 November 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 Marine Corps and began a period of active
duty on 16 October 2001. The Board found that you served without
incident until 18 April 2004, when you were convicted by special
court-martial (SPCM) of disrespect, assault, disobedience,
insubordinate conduct, and misbehavior before the enemy. You
were sentenced to confinement, a forfeiture of pay, a reduction
in paygrade, and a bad conduct discharge (BCD). You received the
BCD on 25 January 2008 after appellate review was completed. On
18 August 2010, the Navy Discharge Review Board {(NDRB) conducted
a documentary review of your discharge and found it to be proper
as issued.
The Board, in its review of your record and application, |
carefully weighed all potentially mitigating factors, such as
your youth, desire to upgrade your discharge, post service
medical diagnosis, contention that you suffered from an ee
undiagnosed mental defect at the time of your misconduct, and
supporting documentation you submitted. Nevertheless, based on
the information currently contained in your record, the Board
concluded these factors and contention were not sufficient to
warrant recharacterization of your discharge given your SPCM
conviction of very serious offenses. With regard to your
contention of an undiagnosed mental defect, as stated in the
NDRB’s letter of 30 September 2010, the determination of mental
competency was addressed through the legal appeals process. The
U.S. Court of Appeals for the Armed Forces upheld the lower
court's findings that you were responsible for your conduct at
the time of the actions and were competent to stand trial.
Accordingly, your application has been denied.
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,
> Runge
W. DEAN PFEIEBP
Executive Direc
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