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

TJR
Docket No: 3515-06
7 November 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 7 November 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 Navy on 20 May 1976 at age 19. About seven months later, on 10 December 1976, you submitted a written request for a humanitarian reassignment and/or hardship discharge. During the period from 28 to 29 December 1976 you were in an unauthorized absence (UA) status for two days. However, the record does not reflect the disciplinary action taken for this period of UA.

On 25 January 1977 your request for reassignment and/or discharge was denied because it did not meet the applicable requirements. Two months later, on 10 March 1977, you received nonjudicial punishment (NJP) for a three day period of UA and were awarded a $75 forfeiture of pay and extra duty for seven days.

On 15 July 1977 you began another period of UA that was not terminated until you were apprehended by civil authorities on 19 September 1979. During this 796 day period of UA you were also declared a deserter. Subsequently, on 7 and again on 13 November 1977 you received NJP for wrongful appropriation of a shirt, a one day period of UA, and missing the movement of your ship.

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, presumably for the 796 day period of UA. 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 shows that you were discharged by reason of good of the service to avoid trial on 20 November 1979, the Board presumed that the foregoing occurred in your case. Because you were discharged 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 and assertion that you were told that your discharge would be upgraded a year after your separation. It also considered your request for a fully honorable characterization of service so that you may obtain veterans’ benefits. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your lengthy period 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 Navy when your request for discharge was granted and should not be permitted to change it now. Finally, there is no provision in law or regulations that allows for recharacterizatjon after one year or due solely to a passage of time. 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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Executive