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

TJR
Docket No: 8046-03
17 August 2004

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 10 August 2004. 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 c eful and coiscieitious consrtio of übe nti~ record, the Board found the evidence submitted was insufficient
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uo establish the existence of probable materiai e or or iniust ice.

iou enlisted in the Marne Corps on 28 June 1972 a age 17 End served for without disciplinary incident until 5 April 1973, when you were convicted by special court-martial (SPCM) of assault with a dangerous weapon. You were sentenced to confinement at hard labor for four months, reduction to paygrade E-l, and a $400 forfeiture of pay.

During the period from 21 February 1974 to 24 April 1975, you received nonjudicial punishment (NJP) on four occasions for assault, disrespect, three periods of absence from your appointed place of duty, and disobedience.

On 20 June 1975 you began a period of unauthorized absence (UA) that was not terminated until 28 October 1975. On 5 November 1975 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the foregoing period of UA totalling 202 days. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. Subsequently, your request for discharge was granted and on 18 November 1975 received an other than honorable discharge 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.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as youth and your assertion that you did not receive help with your problems. It also considered the character reference letters, and certificates of training submitted in support of your case. The Board further considered your post service conduct but noted that a Federal Bureau of Investigation (FBI) report states that since your separation, you have been convicted on three occasions by civil authorities of assault, resisting arrest, and driving while intoxicated. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive misconduct and the lengthy period of UA, which also resulted in your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. The Board also 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.

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.