DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JDR
Docket No: 4335-14
29 April. 2015
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the 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
17 April 2015. 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
10 May 1968, and satisfactorily served without disciplinary
incident for about four months. However, on 18 September 1968,
you received nonjudicial punishment for assault. On
20 January 1969 and 17 October 1969, you were convicted by special
courts-martial of unauthorized absence (UA) and wrongful
communication of a threat.
During the period from 13 January to 13 March 1970 you were again
in a UA status for 60 days. As a result of the foregoing period
of UA and charges of willfully disobeying an order and being
disrespectful in language, you submitted a written request for an
undesirable discharge to avoid trial by court-martial. 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.
Subsequently, your request was granted and the commanding officer
was directed to issue an other than honorable discharge by reason
of the good of the service. 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.
On 3 April 1970, 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. The Board also considered your
assertion of academic achievements and that you served in Vietnam.
Nevertheless, the Board concluded these factors were not
sufficient to warrant relief in your case because of the
seriousness of your misconduct which also 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. 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. Further, there is no evidence in the record to
support your assertions. 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 within one year from the date of the Board's decision.
New evidence is evidence not previously considered by the Board
prior to making its decision in your case. 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 J. O'NEILL
Executive Director
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