DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-S 100

										SMW
										Docket No: 6912-07
										5 March 2008

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 5 March 2008. 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 10 April 1973, you enlisted in the Marine Corps at age 17 with parental consent. On 7 December 1973 and 11 September 1974, you had nonjudicial punishment (NJP) for six instances of absence from your appointed place of duty, five instances of unauthorized absence (UA) totaling about 40 days, and breaking restriction. On 11 September 1974, you were counseled regarding your misconduct and warned that further infractions could result in disciplinary action or administrative separation. On 11 November 1974, you had NJP for four instances of TJA totaling about six days. On 18 November 1974, suspended punishment was vacated from the NJP that you had on 11 November 1974. On 9 December 1974, you were counseled regarding your poor attitude and substandard performance of duty. On 19 December 1974, you had NJP for four instances of failure to go to your appointed place of duty and breaking restriction. On 13 January 1975, you were counseled regarding your poor attitude and substandard performance of duty. On 25 January 1975, you had NJP for failure to go to your appointed place of duty. On 27 January 1975, you were counseled regarding your poor attitude, undesirable performance, and unacceptable conduct. On 7 February 1975,

suspended punishment was vacated from the NJP that you had on 19 December 1974. On 11 February 1975, you were counseled regarding deficiencies in your performance and conduct and warned that further infractions could result in disciplinary action or an other than honorable (0TH) discharge. On 13 February 1975, you had NJP for a day of UA and breaking restriction.

On 13 March 1975, you began a UA that ended on 8 January 1977, a period of about 667 days. On 7 February 1977, you began another UA that ended on 12 April 1977, a period of about 64 days. On 23 May 1977, you requested an 0TH discharge to avoid trial by court-martial for these periods of UA. At that time, you consulted with counsel and acknowledged the consequences of receiving such a discharge. On 25 May 1977, the separation authority approved your request for an 0TH discharge. On 8 June 1977, you were separated with an 0TH 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 potential mitigation, such as your youth. The Board also considered your contention that you completed a period of honorable service in the Army National Guard and belief that a discharge could be upgraded after ten years. 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, especially your UA’s that totaled more than two years. 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 contentions, you provided no evidence to show that you completed a period of honorable service in another branch of the armed forces. But, even if you did provide such evidence, that would not excuse your misconduct that occurred during your period of service in the Marine Corps. Furthermore, there is no provision in the law or regulations that allows for recharacterization due solely to the passage of time. Finally, the Board concluded that you received the benefit of your bargain with the Marine Corps 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.

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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