DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TIR
Docket No: 6077-13
26 June 2014
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 24 June 2014. - 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 29 July 1977. You served for about six months without
disciplinary incident, but on 10 January and again on 8 March
1978, you received nonjudicial punishment (NJP) for a six day
period of unauthorized absence (UA) and four periods of absence
from your appointed place of duty.
On 16 June 1978 you began another period of UA that was not
terminated until you were apprehended by civil authorities on 25
November 1978. During this period of UA you were declared a
deserter and charged by civil authorities with robbery. 5
Nonetheless, on 5 March 1979, you submitted a written request for
an other than honorable discharge in order to avoid trial by
court-martial for the foregoing period of UA totalling 234 days.
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 27 March 1979, your request was granted and the
commanding officer was directed to issue you an other than
honorable discharge by reason of the good of the service. Asa
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 9 April 1979, you
were issued an other than honorable discharge.
The Board, in its review of your entire record and application
carefully weighed all potentially mitigating factors, such as
your desire to upgrade your discharge in accordance with current.
standards regarding the “Don’t Ask -— Don’t Tell” (DADT) Repeal
Implementation policy. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of the seriousness of your misconduct which
resuited in two NUPs and your lengthy period of UA from the
Marine Corps which resulted in your 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 you should not be permitted to
change it now. Finally, there is no evidence in the record, and
you provided none, to support your request for upgrade due solely
to the repeal of the DADT policy. Accordingly, your application
has been denied.
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,
ed
ROBERT S fa
Acting Executive Director
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