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

SJN 
Docket No: 09016-03
										2 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 27 July 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 entire record, the Board found the evidence submitted vas insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy October 1977 at the age   5 December 1972 and 79 November 1973 you received nonjudicial punishment (NJP) for absence from your appointed place of duty and an unauthorized absence (UA) for a period of six days. On 12 September 1973 you were convicted by a summary court-martial (SCM) for UA of 25 days. On 3 January 1974 you began another period of UA that lasted until you surrendered 78 days later on 21 March 1974. You were then placed in confinement pending disciplinary action, or other disposition.

On 11 April 1974 you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for the 78 days of UA. 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. Your request for discharge was granted and on 3 May 1974 you 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 your youth and immaturity. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your two NJP’s and conviction by SCM, and especially your request for an undesirable discharge after a lengthy period of UA.

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 Navy 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,

2