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

TJR
									    Docket No: 11040-06
									    25 October 2007

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 23 October 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.

You enlisted in the Marine Corps on 4 October 1974 at age 21 and served without disciplinary incident until 24 June 1975, when you received nonjudicial punishment (NJP) for three periods of unauthorized absence (UA) totalling seven days. Shortly thereafter, on 22 July 1975, you received NJP for four periods of absence from your appointed place of duty. During the period from 21 August to 9 December 1975, you were in a UA status on two more occasions for 79 days. As a result, you submitted a written request for an other than honorable discharge in order to avoid trial by court-martial for these periods of UA and two specifications of insubordination. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.

During the period from 19 January to 9 March 1976 you were again in a UA status on two more occasions for 50 days and were declared a deserter. However, disciplinary action was not taken for this misconduct. Subsequently, your request for discharge was granted, and on 11 March 1976 you received an other than honorable discharge in lieu of trial by court-martial. As a result, 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 and application, carefully weighed all potentially mitigating factors, such as your youth and assertion that your discharge resulted from alcohol abuse. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your repetitive and lengthy periods of UA which resulted in two NJPs 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. 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