DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE RD SUITE 1001
ARLINGTON VA 22204-2490
BAN
Docket No: 04540-11
21 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 15 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 entered active duty service in the Marine Corps on 17 October
1988, and served without disciplinary incident until 7 June 1989,
when you received nonjudicial punishment (NJP) for an
unauthorized absence (UA), failure to obey a lawful order, and
presenting a false “no duty” chit. Shortly thereafter, you
received the following disciplinary actions: on 7 August 1989,
you received NJP for UA and two specifications of failure to obey
a lawful order; on 6 December 1989, you were convicted at a
special court-martial (SPCM) of two specifications of failure to
go to your appointed place of duty, and wrongful use of a
controlled substance (methamphetamines and amphetamines); and on
6 April 1990, you received NUP for assault. Your record is
incomplete, but you were pending additional charges and requested
through counsel, to be separated to escape trial by court-
martial. Therefore, on 5 July 1990, you were separated with an
other than honorable discharge and an RE-4 reenlistment code, 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 entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth, and claim that you were never convicted of a felony
or at a court-martial. However, the Board concluded that in
fact, you were convicted at a SPCM and found guilty of misconduct
at three NJP’s, and that your claim were not sufficient to
warrant recharacterization of your discharge because of the
seriousness of your misconduct. Further, there is no provision
in the law or regulations that allows for recharacterization of
service due solely to the passage of time. Furthermore, the
Board believed that considerable clemency was extended to you
when your request for discharge to avoid trial by court-martial
was approved. The Board also concluded that you received the
benefit of your bargain with the Marine Corps when your request
for discharge was approved and you 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,
W. D F
Executive Dire
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