DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE RD SUITE 1001
ARLINGTON VA 22204-2490
BAN
Docket No: 05466-12
28 March 2013
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
etates 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 entered active duty service in the Navy on 15 March 1971, and
served without disciplinary incident until 9 December 1971, when
you received nonjudicial punishment for sleeping on watch.
Your record is incomplete, but you were pending a court-martial
for an unauthorized absence of 129 days. You requested, through
counsel, to be separated with an other than honorable (OTH)
characterization of service to escape trial by court-martial. At
that time, you acknowledged the consequences of such a discharge.
Therefore, on 13 October 1972, 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 youth, error of judgment and Vietnam service. However, the
Board concluded that these factors were not sufficient to warrant
recharacterization of your discharge because of your misconduct
and request for discharge. Furthermore, 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 also concluded that you received the benefit of your
bargain with the Navy when your request for discharge was granted
and you 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 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. ZSALMAN
Acting Executive Director
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