DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 5842-11
9 March 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 7 March 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 Navy and began a period of active duty on
19 September 1974 at age 17. You received nonjudicial punishment
(NJP) on three occasions for two instances of disobeying a lawful
regulation, wrongful possession and use of marijuana, being ina
place where marijuana was being used, two instances of striking a
superior petty officer, insubordinate conduct toward a superior
petty officer, eight instances of using disrespectful language,
failure to obey a lawful order, and three instances of failure to
go to your appointed place of duty. On 14 January 1977, you were
in an unauthorized absence (UA) status from your unit for a
period of 83 days, until you were apprehended by civil
authorities in Dixon, Illinois, on 7 April 1977. Based on the
information currently contained in your record it appears that
you submitted a written request for an other than honorable (OTH)
discharge in order to avoid trial by court-martial for the
forgoing charge of UA. Prior to submitting this request you
would have 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. On 11 May
1977, your request was granted and you were separated with an 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.
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 three NJPs, a period of UA that
lasted over two 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. The Board concluded that you received the benefit of
your bargain with the Navy when your request for discharge was
granted and should not be permitted to change it now. Finally,
there is no provision of law or in Navy regulations thet allows
for recharacterization of service due solely to the passage of
time. 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,
Yeon
W. DEAN P
Executive D xc
bo
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