DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TOR
Docket No: 5898-12
13 July 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 10 July 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 Navy at age 24 and began a period of active
duty on 2 November 1988. You served for about nine months
without disciplinary infraction, but during the period from 26
August to 4 September 1989, you were in an unauthorized absence
(UA) status for nine days. The disciplinary action taken, if
any, for this misconduct is not reflected in the record. Less
than 10 months later, on 20 July 1990, you received nonjudicial
punishment (NUP) for absence from your appointed place of duty.
The record reflects that during an approved leave period you were
shot and the bullets remained in your body. This action did not
occur in the line of duty, was not the result of enemy action,
and was the result of your own misconduct. Upon your return from
this leave period, on 18 February 1991, you were escorted to a
medical center for evaluation. Subsequently, you were directed
to report to a naval hospital for further evaluation and/or
medical care. However, you failed to obey the foregoing order
and instead of reporting to a naval hospital, on 25 February
1991, you began yet another period of UA. This period of UA was
not terminated until you were apprehended by civil authorities on
3 July 1991, charged with various drug related offenses, and
subsequently placed on probation. Nonetheless, you chose not to
return to military custody. However, on 6 March 1992, you were
again apprehended by civil authorities and returned to military
custody, thus terminating a 375 day period of UA. Following a
medical evaluation/examination you were found fit for an
administrative separation.
Although the discharge documentation is not in your record, it
appears that you requested discharge for the good of the service
to avoid trial by court-martial for the foregoing 375 day period
of UA. Regulations required that before making such a request,
an individual must be advised by military counsel concerning the
consequences of such a request. Since the record shows that you
were discharged by reason of good of the service to avoid trial
on 13 May 1992, the Board presumed that the foregoing occurred in
your case. Because you requested discharge in lieu of tfial, you
avoided the possibility of a punitive discharge and confinement
at hard labor.
The Board, in its review of your entire record and application,
which included supporting documentation, carefully weighed all
potentially mitigating factors, such as your youth, period of
satisfactory service in the Army National Guard, desire to
upgrade your discharge, and assertion that since your gun-shot
injury occurred while you were on approved leave, you are
entitled to veterans benefits and the characterization of your
discharge should be changed to honorable. Nevertheless, the
Board concluded these factors and your assertion were not
sufficient to warrant recharacterization of your discharge
because of your repetitive misconduct in both the military and
civilian communities, repeated and lengthy periods of UA, and
your request for discharge. The Board believed that considerable
clemency was extended to you when your request for discharge was
approved since, by this action, you escaped the possibility of
confinement at hard labor and a punitive discharge. The Board
further 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. Further, the Board
noted that there is no evidence in your record, and you submitted
none, to support your assertion. Accordingly, your application
has been denied.
The Board believes that under current regulations you may be
eligible for veterans’ benefits which accrued during your first
period of service with the Army National Guard. Whether or not
you are eligible for benefits is a matter under the cognizance of
the Department of Veterans Affairs (DVA), and you should contact
the nearest office of the DVA concerning your right to apply for
benefits. If you have been denied benefits, you should appeal
that denial under procedures established by the DVA.
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,
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