DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
704 $, COURTHOUSE ROAD, SUITE 7004
ARLINGTON, VA 22204-2490
TAL
Docket No: 4059-11
27 January 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 25 January 2012. The names and votes of the
members of the panel will be furnished wpon 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 Corp and began a period of active duty
on 7 June 1971 at age 17. On 14 March 1972, you were convicted
by summary court-martial (SCM) of unauthorized absence (UA) from -
your unit for a period of 29 days. On 6 September 1972, you were
convicted by SCM of UA from your unit for a period of 47 days. On
4 December 1973, you submitted a written request for an other
than honorable (OTH) discharge in order to avoid trial by court-
martial for two instances of UA from your unit totaling a period
of 175 days. 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 7 January 1974, 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 two SCMs, periods of UA that
totaled over eight 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. 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. Finally, the Board noted that there is no evidence in
your record, and you submitted none, to support your contention
‘of racist treatment by your commanding officer. 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,
W. DEAN PFEIRE
Executive Dirdéc
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