DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 331-12
15 October 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 11 October 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 May 1973 at age 17. You received nonjudicial
punishment on two occasions for unauthorized absence (UA) from
your unit for one day and sleeping while on fire watch. On
15 June 1974, you made a written request for discharge under
other than honorable (OTH) conditions to avoid trial by court-
martial for two instances of forcible sodomy and one offense of
assault. Prior to submitting this request you conferred with a
gualified 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
separation authority directed your OTH discharge. On 7 August
1974, you were discharged under OTH conditions. 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 two NJPs 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 IH jUSTLGE ;
Sincerely,
Re DS
ROBERT D. tomer
Acting Executive Director
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