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

TJR
Docket No: 2415-06
20 September 2006

	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 19 September 2006. 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 was insufficient to establish the existence of probable material error or injustice.

You enlisted in the Marine Corps on 10 August 1988 at the age of 18 and served for nearly a year without disciplinary incident. However, on 17 August and again on 1 November 1989, you received nonjudicial punishment (NJP) for two periods of unauthorized absence (UA) totalling 31 days and absence from your appointed place of duty. On 24 November 1989 you began another period of
UA.

On 1 January 1990, while in a UA status, you were convicted by civil authorities of malicious wounding and were sentenced to a $140 fine and confinement for 12 months, which was suspended. On
3 February 1990 your period of UA was terminated when you were apprehended by civil authorities. On 14 February 1990 you were again convicted by civil authorities of possession of an expired registration and disregard of a stop sign. You were sentenced to a $35 fine, a portion of which was suspended. During the period from 27 February to 5 March 1990 you were absent from your appointed place of duty on three occasions, however, the record does not reflect if any disciplinary action was taken for this misconduct. On 5 March 1990 you began a period of UA that was not terminated until 24 April 1990 when you were apprehended by military authorities.

Although the discharge documentation is not in your record, it appears that you requested discharge for the good of the service to avoid trial by court-martial for the foregoing two periods of UA totalling 121 days. Regulations required that before making such a request, a Sailor must be advised by military counsel concerning the consequences of such a request. Since the record clearly shows that you were discharged on 15 June 1990 by reason of good of the service to avoid trial, the Board presumed that the foregoing occurred in your case. Because you requested discharge in lieu of trial, you avoided the possibility 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, post service conduct, character reference letters, and your certificate of proclamation. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive misconduct in both the military and civilian communities, 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. 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

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