DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 7287-14
29 July 2015
Dear
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 in a 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
24 June 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 21 November 1974. You served for ten months without
Gisciplinary incident, but during the period from
22 September 1975 to 16 April 1976, you received nonjudicial
punishment (NJP) on three occasions. Your offenses were failure
to obey a lawful regulation, absence from your appointed place of
duty, and insubordinate conduct toward a noncommissioned officer.
On 16 August 1976, you were in an unauthorized absence (UA)
status from your unit until you were apprehended on
3 October 1976, a period of 48 days. You made a written request
for discharge for the good of the service to avoid trial by
court-martial for the forgoing period 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 21 December 1976, you were
discharged under OTH conditions.
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 repeated 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. Finally, there is no provision of law or in Marine Corps
regulations that allows for recharacterization of service due
solely to the passage of time. 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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