DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 4126-11
25 April 2011
This is in reference to your applications 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, reconsidered your
application on 19 April 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 applications, together with all
material submitted in support thereof, your naval record, and
applicable statutes, regulations, and policies. in addition the
Board considered the Naval Discharge Review Board (NDRB)
decisional document (MD85-01018) resulting from your personal
appearance before that Board on 20 November 1985.
After careful and conscientious reconsideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
Your record reflects that on 25 October 1973 you enlisted in the
Marine Corps at the age of 17. At that time you stated that you
had never been arrested, convicted of a crime, sentenced by a
court, or received a suspended sentence. However, on 21 November
1973, an agency background check stated, in part, that your
involvement with civil authorities included theft of an
automobile, disturbing the peace, resisting arrest, and driving
under the influence of alcohol.
On 25 February 1974 you were convicted by summary court-martial
(SCM) of two periods of unauthorized absence (UA) totalling 64
days. About a year later, on 24 January 1975, you were convicted
by special court-martial (SpcM) of a 138 day period of UA. On 3
May 1975 you began yet another period of UA that was not
terminated until 12 May 1976. As a result, on 17 May 1976, you
submitted a written request for an other than honorable discharge
in order to avoid trial by court-martial for the foregoing period
of UA totalling 375 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. Subsequently, your
request was granted and the commanding officer was directed to
issue you an other than honorable discharge by reason of the good
of the service. As a result of this action, you were spared the
stigma of a court-martial conviction and the potential penalties
Of aupuipiaede-di scharge and confinement at hard labor. On 19 May
1976 you*weterdigsued an other than honorable discharge.
In November 1985 the NDRB determined that you qualified for an
upgrade of your undesirable discharge under uniform standards
and, as such, upgraded the your discharge to general under
honorable conditions. It appears that this decision was based,
in part, on your “long pre-service history of alcoholism and
alcohol related incidents” which were not likely known by your
superiors and your “post-service academic endeavors and
participation in alcohol rehabilitation.” However, because of
the seriousness of your record of misconduct, the narrative
reason for separation was not changed.
The Board, in its review of your entire record and applications
carefully weighed all potentially mitigating factors, such as
your youth, desire to upgrade your general discharge, the NDRB
decisional document, and letters of congressional interest in
support of your applications. It also considered your evidence
of mistaken identity, history of pre-service alcoholism, juvenile
record, and assertions of not being afforded counselling,
problems adjusting, receiving inadequate legal advice, family
emergencies and death, health problems, and being diagnosed with
post traumatic stress disorder (PTSD). Nevertheless, the Board
concluded these factors were not sufficient to warrant relief in
your case. The Board noted that your characterization of service
was changed to general under honorable conditions, but concluded
that a further change was not warranted because of the
seriousness of your repeated and lengthy periods of UA which
resulted in conviction by a SPCM and a SCM, and your request for
an undesirable discharge for a 375 day period of UA. The Board
believed that considerable clemency was extended to you when your
discharge was upgraded to general under honorable conditions, and
concluded that you should not be permitted to change it now based
on your assertions. Finally, the Board concluded that you were
fortunate to have received a general discharge with having a
record of 577 days of UA in less than a three year period.
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,
Executive Dive
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