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

TRG
Docket No: 8716-05
22 February 2007

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 February 2007. 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.

You enlisted in the Marine Corps Reserve on 17 September 1980 at age 20 and reported for extended active duty. Subsequently, you were an unauthorized absence on two occasions totaling about 230 days. The second period of absence was terminated by apprehension.

The discharge package is not filed in your record, however, it appears that you submitted a written request for a discharge under other than honorable conditions in order to avoid trial by court-martial for the two periods of unauthorized absence. Regulations required that prior to submitting this request, you confer with a qualified military lawyer, be advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. The Board found that when your request was granted, you were spared the stigma of a courtmartial conviction and the potential penalties of a punitive discharge and confinement at hard labor. The record clearly shows that you were discharged under other than honorable conditions in lieu of trial by court-martial on 4 December 1981.

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In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth and your desire for veterans benefits. The Board found that these factors were not sufficient to warrant recharacterizatiOn of your discharge given your record of misconduct and especially your request for discharge to avoid trial for the offenses. The Board believed that considerable clemency was extended to you when your request for discharge to avoid trial by court-martial was approved since, by this action, you escaped the possibility of confinement at hard labor and a punitive discharge. Further, the Board concluded that you received the benefit of your bargain when your request for discharge was granted and you should not be permitted to change it now. The Board concluded that your discharge was proper as issued and no change is warranted.

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,

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