DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 381-12
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 enlisted in the Marine Corps and began a period of active
duty on 26 October 1979 at age 17. On 12 March 1980, you
received nonjudicial punishment for failure to obey a lawful
order. On 14 July 1980, you were in an unauthorized absence
(UA) status from your unit until you surrendered on 30 August
1982, a period of 777 days. On 29 October 1982, you submitted a
written request for an other than honorable (OTH) discharge in
order 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 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 November 1982 you were
separated with a discharge under OTH conditions.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your youth, overall record of service and contention that you
were cooperating with a Naval Investigative Service (NIS)
investigation. Nevertheless, the Board concluded these factors
were not sufficient to warrant recharacterization of your
discharge given the seriousness of your misconduct that resulted
in an NUP, a period of UA that lasted over two years 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. Regarding your
contention, the Board found no evidence in your record to
support it, and you have provided no such evidence. 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,
L> Dau
W. DEAN PFE
Executive Dittector
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