DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SJN
Docket No: 03851-11
15 February 2012
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 14 February 2012. 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 5 January 1982. The Board found that on 25 January
1984, you received nonjudicial punishment (NOP) for larceny. On
13 December 1984, you were convicted by summary court-martial
(SCM) of three specifications of unauthorized absence (UA)
totaling 32 days. You were sentenced to confinement at hard
labor. On 16 February 1985, you began a period of UA that
lasted 40 days, ending on 27 March 1985. On 5 April 1985, you
submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for 40 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 2 May 1985, 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, record
of service, and post service medical issues. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge given your misconduct that
resulted in NUP, conviction by SCM, charges being preferred to a
court-martial for a serious offense, 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 Marine Corps 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 efficial 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,
lv.
W. DEAN F
Executive e rr
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