DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4823-11
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 12 December 1968 at age 18. You received nonjudicial
punishment (NJP) on three occasions for failure to obey a lawful
order, unauthorized absence (UA) from your unit for a period of
seven days, sleeping of post and willfully disobeying a superior
commissioned officer. On 10 April 1970, you were convicted by
special court-martial (SPCM) of insubordinate conduct toward a
superior noncommissioned officer. The sentence imposed was
confinement, reduction in paygrade and a forfeiture of pay. The
confinement was suspended for six months. On 17 November 1970,
you received NJP for UA from your unit for a period of seven
days and absence from your appointed place of duty. On 14
January 1971, you were convicted by SPCM of assault,
communicating a threat and UA from your unit for a period of
eight days. The sentence imposed was confinement, a forfeiture
of pay and reduction in paygrade. On 16 July 1971, you were UA
from your unit until 13 December 1971, a period of 180 days.
On 27 December 1971, you made a written request for discharge
for the good of service to avoid trial by court-martial for the
foregoing 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 other than
honorable (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 11 October 1972, 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 combat in Vietnam. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your misconduct that resulted in four NUPs, two SPCMs, periods
of UA totaling over six 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,
ly Neotel
Executive
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