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

TJR
Docket No: 8289-03
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 careful and conscientious consideration of the on the 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 on 6 February 1974 at age 17.   Shortly thereafter, on 23 July 1974, you received nonjudicial punishment (NJP) for a 24 day period of unauthorized absence (UA) and were awarded a $75 forfeiture of pay and restriction and extra duty for 14 days. About a month later, on 20 August 1974, you received NJP for absence from your appointed place of duty. The punishment imposed was a $25 forfeiture of pay and restriction for 14 days, which was suspended for three months.

On 15 May 1975 you were convicted by special court-martial (SPCM) of two periods of UA totalling 230 days. You were sentenced to confinement at hard labor for three months and a $600 forfeiture of pay.

On 18 June 1976 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the two periods of UA totalling 240 days. Your record shows that 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. Subsequently, your request was granted and your commanding officer was directed to issue you an other than honorable discharge by reason of the good of the service. 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 July 1976 you were issued an other than honorable discharge.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and your contention that you needed help with your drug problem. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive and lengthy periods of UA, and 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 further 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. Further, the Board noted that there is no evidence in your record, and you submitted none, to support your contention. 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.