DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4522-12
22 March 2013
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 20 March 2013. 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
6 November 1974 at age 18. You received nonjudicial punishment
(NJP) on three occasions for unauthorized absence (UA) from your
unit for a period of 22 days, failure to obey a lawful order and
assault. On 16 December 1976, you were UA from your unit until
you were apprehended by military police on 5 July 1977, a period
of 201 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 for the forgoing 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. On 28 September 1977, you once again received NJP
for failure to obey a lawful order. The record clearly shows
that your request for the OTH discharge was approved, on 7
October 1977 you were discharged. 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 four NJPs, periods of UA
totaling over 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. Finally, 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. 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,
Fee tr ng
ROBERT D. SALMAN
Acting Executive Director
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