DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 5S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TIR
Docket No: 6920-13
31 July 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 29 July 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, began a period of active duty
on 30 September 1974, and served for about a year and three
months without disciplinary incident. However, during the period
from 1 December 1975 to 7 December 1377, you received nonjudicial
punishment (NJP) on five occasions and were convicted by summary
court-martial (SCM) and twice by special court-martial {SPCM).
Your offenses were failure to obey a lawful order, breach of the
peace, four specifications of disobedience, two periods of
unauthorized absence (UA) totalling four days, absence from your
appointed place of duty, two specifications of disrespect, drunk
and disorderly conduct, communicating a threat, missing the
movement of your ship, and failure to go to your appointed place
of duty.
The record reflects that from 28 December 1977 to 3 January 1978,
you were in a UA status for six days. However, the record does
not reflect the disciplinary action taken, if any, for this
misconduct. You were also UA from 5 to 17 January 1978 on two
more occasions for nine days. As a result, you were referred for
NIP, which you refused and requested trial by court-martial with
the hopes of receiving a:bad conduct discharge. Subsequently,
you withdrew your reqiest in lieu of being administratively
processed for separation. Nonetheless, on 3 February 1978, you
began another period of UA that was not terminated until 12 April
1978.
It appears that you requested discharge for the good of the
service to avoid trial by court-martial for the latter period of
UA totalling 78 days. Regulations required that before making
such a request, an individual had to 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 4 August 1978, the Board presumed that
the foregoing occurred in your case. Because you requested
discharge in lieu of trial, you avoided the possibility 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 desire to upgrade your discharge and assertion of family and
medical problems. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge because of your repeated and lengthy periods of UA
which presumably resulted in 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 Marine Corps when
your request for discharge was granted and should not be
permitted to change it now. Finally, there is no evidence in the
record, and you submitted none, to Support your assertion.
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,
TS QS KO
ROBERT D. ZSALMAN
Acting Executive Director
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