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

								FC
											Docket No: 1307-04
											 2 August 2004

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 28 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 that the evidence submitted was insufficient to establish the existence of probable material

The Board found that you enlisted in the Marine Corps on 16 August 1983 at age 17. You served without incident until 2 November 1984, when you received nonjudicial punishment (NJP) for stealing a pair of sunglasses and cap valued at $15.50 from the Marine Corps Exchange. You were awarded a forfeiture of pay. On 17 January 1985 you received a second NJP for unauthorized absence (UA) while in a restricted status. You were awarded a forfeiture of pay, restriction, and extra duty. On 5 October 1985 you were convicted by summary court martial (SCM) of unlawful entry and stealing $403.75 from a hotel in Okinawa. You were sentenced to a forfeiture of pay, 30 days of confinement at hard labor, and a reduction to paygrade E-1. On 26 December 1985 you received a third NJP for being UA from your appointed place of duty. You were awarded a forfeiture of pay, restriction, and extra duty. The restriction and extra duty were suspended for three months.

On 18 February 1986 you requested an other than honorable discharge in order to avoid trial by court-martial for a brief period of UA, missing movement, and breaking restriction. 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 18 March 1986 the separation authority approved your request and the commanding officer was directed to issue you an other than honorable 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 1 April 1986 you received an other than honorable discharge.

In its review of your case, the Board carefully weighed all potentially mitigating factors such as your youth, the length of time that has passed since you were discharged from the Marine Corps, and your apparent excellent post service adjustment. However, the Board concluded that those factors were not sufficient to warrant recharcterization of your discharge because of your request for discharge to avoid trial by court martial and the other misconduct that resulted in three NJPs and a conviction by a SCM. 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