DEPARTMENT OF THE NAVY
                   BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51OO

SMW
Docket No: 8896-06
16 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 15 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.

On 8 August 1972 you enlisted in the Navy at age 19. On 1 March 1973 you were counseled after you received a derogatory performance mark in adaptability. During the period from 14 May to 20 June 1973, you were in an unauthorized absence (UA) status on two occasions totaling about 21 days. On 22 June 1973 you were counseled regarding deficiencies in your performance and conduct, and warned that further infractions could result in an undesirable discharge. On 26 June 1973 you were involved in a fight that resulted in assault charges.

On 18 July 1973 you requested an undesirable discharge for the good of the service to avoid trial by court-martial for the two UA’s that totaled 21 days and assault. At that time, you consulted with counsel and acknowledged the consequences of receiving such a discharge. On 31 July 1973 your request for an undesirable discharge was approved by the separation authority. On 3 August 1973 you were separated with an undesirable discharge for the good of the service to avoid 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, carefully considered all mitigating factors, such as your youth. The Board also considered the contention that you were unable to adapt to military life and were told that you would have to commit misconduct in order to get discharged. Nevertheless, the Board found the evidence and materials submitted were not sufficient to warrant recharacterization of your discharge due to the seriousness of your misconduct that continued even after you were warned that further infractions could result in an undesirable discharge. Furthermore, 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. Regarding your contention, the record shows that you received a derogatory performance mark in adaptability and expressed a desire to be discharged prior to the 21-day period of UA. But there is no evidence in the record to show that you were advised to commit misconduct. Finally, the Board concluded that you received the benefit of your bargain with the Navy when your request for discharge was granted and you 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,