DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE RD SUITE 1001
ARLINGTON VA 22204-2490
BAN
Docket No: 05185-12
28 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. 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 had prior honorable service in the Marine Corps from 1976 to
1979. You reenlisted on 31 May 1979, and served without
disciplinary action until 23 April 1980, when you received
nonjudicial punishment (NJP) for failure to obey a lawful order.
Shortly thereafter, you received the following disciplinary
actions: on 1 May 1980, you received NUP for breaking
restriction; on 25 August 1980, you were convicted at a summary
court-martial (SCM) of two specifications of disrespect; on 28
October 1980, you received NUP for two specifications of willful
disobedience, failure to obey a lawful order, three
specifications of sleeping on post, and two specifications of
disorderly conduct in public; on 13 August 1981, you received NUP
for disobeying a lawful order; and in February 1982, you were
pending court-martial for disobeying a lawful order, possession
of a controlled substance (marijuana), drug paraphernalia, and
unauthorized absence in excess of 13 days. You requested through
counsel to be separated in lieu of a trial by court-martial with
an other than honorable (OTH) characterization of service. At
that time, you acknowledged the consequences of such a discharge.
Your request was granted and on 11 March 1982, you were
separated with an OTH discharge and an RE-4 reenlistment code, in
lieu of trial by court-martial. 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 his entire record and application,
carefully weighed all potentially mitigating factors, such as
your claim of having epilepsy and prior honorable service.
However, the Board concluded that these factors were not
sufficient to warrant recharacterization of your discharge
because of your serious misconduct 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 Marine Corps when your request for
discharge was granted and you should not be permitted to change
it now. The Board was unable to find any evidence in your record
to support your claim, and you provided no such evidence.
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 his 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,
ROBERT D. ALMAN
Acting Executive Director
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