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

SMW
Docket No: 9667-06
15 March 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 14 March 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 27 August 1979 you enlisted in the Marine Corps at age 17 with parental consent. On 19 February 1980 you were counseled for being in an area where marijuana was found and letting another Marine take the blame in civil court. You were also warned that further infractions would result in disciplinary action. On 21 March 1980 you were convicted by civil court of possession of marijuana and sentenced to probation.

On 5 May 1980 you were convicted by special court-martial (SPCM) of assault, possession of 15 grams of marijuana, and two instances of escape from lawful custody. On 21 November 1980 you requested an other than honorable discharge for the good of the service to avoid trial by court-martial. However, your request was disapproved, and on 26 January 1981 you were convicted by SPCM of possession of marijuana and assault. On 3 February 1981 you received nonjudicial punishment (NJP) for failure to obey a lawful order, speeding, and a brief period of unauthorized absence (UA). On 4 May 1981 you began a period of UA that ended on 15 May 1981, a period of about 11 days. On 1 June 1981 you were apprehended by civil authorities and convicted of possession of marijuana. On 20 July 1981 you were convicted by summary court-martial (SCM) of the 11-day UA.

On 20 July 1981 your commanding officer (CO) initiated administrative separation by reason of misconduct due to frequent discreditable involvement. In connection with this processing, you acknowledged that separation could result in an other than honorable discharge and waived the right to have your case heard by an administrative discharge board (ADB). On 18 August 1981 the separation authority approved the discharge recommendation and directed an other than honorable discharge by reason of misconduct due frequent discreditable involvement. On 11 September 1981 you were so discharged.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and desire for veterans’ benefits. The Board also considered the contention that you were set up by another Marine and illegally searched. Nevertheless, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge due to the seriousness of your repetitive misconduct that continued even after you were counseled and warned. Regarding your contentions, there is no evidence in the record that you were set up or were subjected to an illegal search. The record does show that your discharge resulted from your two civil convictions, an NJP, and three courts-martial convictions. Finally, the Board also noted that you waived the right to have your case heard by an ADB, your best opportunity for retention or a more favorable characterization of service. Therefore, the Board concluded that the 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,

W. DEAN PFEIFFER
Executive Director

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