DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4023-11
10 February 2012
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 2 February 2012. 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 7 September 1972 at age 19, On 27 March 1973, you were
apprehended by civil authorities in Washington, DC, while you
were in an unauthorized absence (UA) status, for armed robbery.
On 1 May 1973, you were released from civil confinement. You
remained in a UA status for 638 days, until you surrendered on
30 January 1975, to apply for the Presidential Clemency Program.
On 4 February 1975, you were informed that you were ineligible
for that clemency program. On 20 February 1975 you were
apprehended by civil authorities in Prince Georges County,
Maryland, on charges of two counts of breaking and entering and
possession of marijuana. On 24 June 1975, you were again UA
from your unit until you were apprehended on 13 August 1976 by
the Federal Bureau of Investigation (FBI) in Washington, DC. On
6 October 1976, you made a written request for discharge under
other than honorable (OTH) conditions to avoid trial by court-
martial for the foregoing periods of UA. 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.
Your request was granted and the commanding officer directed
your 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.
On 21 October 1976, you were discharged under OTH conditions.
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 periods of UA totaling more
than one year and nine months, a civil conviction 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. Further, the Board
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 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,
\o “saan,
W. DEAN PFE
Executive
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