DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4540-14
7 May 2015
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.
Although your application was not filed ina timely manner, the
Board found it in the interest of justice to waive the statute of
limitations and consider your application on its merits. A
three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on
29 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 and began a period of active
duty on 7 March 1973. You served for three months without
disciplinary incident, but during the period of 5 July 1973 to
16 July 1976 you were in an unauthorized absence (UA) status from
your unit on three occasions for periods totaling two years and
six months.
Subsequently, you made a written request for discharge for the
good of the service to avoid trial by court-martial for the
foregoing periods of UA. 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. Your request was
granted and the commanding officer directed your other than
honorable (OTH) discharge. 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 27 August 1976, you were so discharged.
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. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge given the seriousness of
your misconduct and 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 should not be permitted to change it
now. 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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