DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4352-11
15 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 8 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 2 October 1974 at age 17. You received nonjudicial
punishment (NUP) on two occasions for unauthorized absence (UA)
from your unit for a period of five days and failure to go to
your appointed place of duty. On 23 June 1975 you were UA from
your unit until you surrendered on 10 July 1975, a period of
17 days. On 23 July 1975, you were UA from your unit until you
surrendered on 13 August 1975, a period of 21 days. On
10 September 1975, you were charged with two instances of
failure to go to your appointed place of duty. On 6 October
1975, you were UA from your unit for a period of 35 days until
you were apprehended on 12 November 1975. On 20 November 1975,
you were again UA from your unit for a period of 34 days until
you were apprehended on 24 December 1975. On 3 February 1976,
you submitted a written request for an other than honorable
(OTH) discharge in order to avoid trial by court-martial for
forgoing instances 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 10 March
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 two NUJPs, periods of UA
totaling more than three 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. 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,
Dia edes
Executiv
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