DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1211-19 
Ref: Signature Date 

Dear

This is in reference to your application of 5 January 2019 for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 26 February 2020.  The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your naval record, and applicable statutes, regulations, and policies.
 
You enlisted in the Marine Corps and began a period of active duty on 16 October 1973.  On 6 May 1974, you received non-judicial punishment (NJP) for an unauthorized absence.  On 23 August 1976, you submitted a written request for separation for the good of the service to avoid trial by court-martial for an unauthorized absence (UA) for the period of 26 November 1974 to 17 July 1976.  Prior to submitting this request, you conferred with a military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As part of this discharge request, you admitted your guilt to the foregoing period of UA and acknowledged that your characterization of service upon discharge would be other than honorable (OTH).  Your request was granted and your commanding officer was directed to issue you an OTH characterization of service for the good of the service.  On 29 September 1976, pursuant to your request, you were so discharged.
 
The Board carefully weighed all potentially mitigating factors, including your desire to upgrade your discharge.  The Board considered your assertion that your family was in a “real bad way” and your wife was pregnant, so you decided to stay home and work.  You were given a general court-martial and an OTH discharge.  You further contend that your lawyer told you that you could get your discharge changed to an honorable discharge in six months.  The Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your misconduct and subsequent discharge at your request to avoid trial by court-martial.  Additionally, be advised that there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time.  Under the totality of the circumstances, the Board discerned no probable material error or injustice in the discharge. 

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 the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or 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,