DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4820-11
22 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. 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 6 December 1971 at age 18. You received nonjudicial
punishment (NJP) on five occasions for five instances of being
absent from your appointed place of duty and unauthorized
absence (UA) from your unit for a period of three days. On
10 October 1974, you were convicted by summary court-martial
(SCM) of three instances of UA from your appointed place of
duty. On 6 November 1974 you received NUP for UA from your unit
for a period of three days. On 5 may 1975, you were convicted
by special court-martial (SPCM) of six instances of failure to
go to your appointed place of duty and UA from your unit for a
period of 18 days. The sentence imposed was confinement and a
forfeiture of pay. On 18 June 1975, you were in a UA status
from your unit until you surrendered on 13 August 1975, a period
of 56 days. On 10 September 1975, you submitted a written
request for an other than honorable (OTH) discharge in order to
avoid trial by court-martial for the forgoing period 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 October 1975, 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 Vietnam 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 six NUPs, a SCM, a SPCM 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,
LaSbane\
W. DEAN PF
Executive r
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