DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 7688-14
30 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
8 July 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 15 August 1973. You served for a year and 10 months
without disciplinary incident, but during the period from
17 July 1975 to 19 July 1976, you received nonjudicial
punishment (NJP) on two occasions. Your offenses were
unauthorized absence (UA) and failure to go to your appointed
place of duty. On 16 August 1976, you were in an UA status from
your unit until you surrendered on 22 April 1977, a period of
255 days.
Subsequently, 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 8 June 1977, you were 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 relief in
your case because of the seriousness of your repeated misconduct
that resulted in a period of UA lasting more than eight months.
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'NELLL
Executive Director
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