DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 368-12
27 September 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 26 September 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 reenlisted in the Navy on 25 January 1990 after more than
three years of prior honorable service. On 7 February 1995, you
were in an unauthorized absence (UA) status from your unit until
you surrendered on 14 November 1996, a period of 632 days.
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. 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 April. 1997,
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 prior honorable service. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge due to the seriousness of
your misconduct that resulted in a period of UA that lasted over
one year and seven 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 that 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,
ly
W. DEAN PFEI
Executive Di
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