DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

FC
Docket No: 01274-03
21 August 2003

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 13 August 2003. 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

The Board found that you enlisted in the Marine Corps on 19 June 1967 at age 17.

On 23 April 1968 you arrived in Vietnam. On 4 December 1968, you received nonjudicial punishment (NJP) for wrongful appropriation of a truck and a curfew violation, and were awarded a forfeiture of pay and restriction. On 13 January 1969, you received a second NJP for being in an off limits area, and were awarded a forfeiture of pay, restriction, and extra duty. On 11 May 1969, you departed Vietnam.

During the period of 18 September 1969 through 19 January 1970, you received five more NJPs for the offenses of unauthorized absence and sleeping on watch. On 3 April 1970 you were advised of administrative separation processing and you retained all of your procedural rights.

	    

On 12 April 1970, you commenced a period of unauthorized that was terminated by your apprehension by military authorities on 12 June 1970. On 24 June 1970 you requested a discharge in order to avoid trial by court-martial for the above 61-day period of UA. Prior to submitting this request for discharge, 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. On 10 July 1970 the commanding officer forwarded your request for discharge recommending approval. On 29 July 1970, the staff judge advocate concurred with the recommendation of the commanding officer. On 4 August 1970 the separation authority approved your request and the commanding officer was directed to issue you an undesirable discharge by reason of good of the service in lieu of trial by court-martial. 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 1970 you received an undesirable discharge.

In its review of your case, the Board carefully weighed all potentially mitigating factors such as your youth and immaturity, the length of time that has passed since you were discharged from the Marine Corps, and your combat service in Vietnam. However, the Board concluded that these factors were not sufficient to warrant recharcterization of your discharge given your frequent misconduct that resulted in seven NJPs, and especially your request for discharge to avoid trial by court martial for a 61-day period of UA. Further, the Board concluded that you received the benefit of your bargain when your request for discharge was granted and should not be permitted to change it now. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

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,

W. DEAN PFEIFFER
Executive Director