DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
ELP
Docket No. 1818-01
30 November 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD
Ref:
Encl:
(a) 10 U.S.C. 1552
(b) SECNAVINST
1910.4A
(1) DD Form 149
(2) Case summary
(3) Subject's naval record
Pursuant to the provisions of reference (a), Petitioner, a
1.
former enlisted member of the Navy,
Board requesting, in effect,
that his naval record be corrected
to show a more favorable type of discharge than the undesirable
discharge issued on 5 May 1948.
filed enclosure (1) with this
The Board, consisting of Messrs. Pfeiffer, Brezna, and
2.
reviewed,Petitioner's allegations of error and injustice
Swarens
on 28 November 2001 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
available evidence of record.
Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations, and policies.
The Board, having reviewed all the facts of record pertaining
3.
to Petitioner's allegations of error and injustice finds as
follows:
a.
Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b.
Although it appears that Petitioner's application to the
Board was not filed in a timely manner, it is in the interest of
justice to waive the statute of limitations and review the
application on its merits.
C .
Petitioner enlisted in the Navy on 18 July 1947 for three
The record reflects that Petitioner was
years at age 18.
advanced to seaman second class and his rate was subsequently
changed to seaman apprentice.
1 April 1948, when he submitted a statement to the effect that he
had engaged in homosexual activities since the age of 14. He
He served without incident until
stated that he enlisted thinking he could change his ways, but
However, he claimed that he had not
found that he could not.
committed any homosexual acts since his enlistment.
Petitioner agreed to accept an undesirable discharge for the
good of the service to escape trial by general court-martial.
On 2 April 1948 he was evaluated by a medical officer and was
classified a class II homosexual.
Thereafter,
d.
On 3 April 1948 the commanding officer requested authority
to discharge Petitioner as undesirable.
A board of officers
convened in the Bureau of Naval Personnel on 21 April 1948 and
recommended an undesirable discharge.
Personnel approved the recommendation and directed an undesirable
discharge by reason of unfitness.
Petitioner was so discharged
on 5 May 1948.
The Chief of Naval
e.
An entry in the record,
made at the time of his discharge,
states that the final average of Petitioner's marks was 2.8.
However, this appears to be inaccurate since there was only one
set of marks entered through 31 December 1947.
received marks of 4.0 in conduct and 3.5 in proficiency. No
other marks are recorded in record to show how a 2.8 average was
obtained.
On that date, he
f.
Reference
(b) sets forth the Department of the
Navy's
With regard to
(b) declares such behavior to be
and procedures for administratively
current policies, standards,
separating enlisted service members.
homosexuality, reference
incompatible with Naval Service.
Corps officials with the authority to involuntarily separate
those service members who commit a homosexual act or acts. If
separated, the service member's discharge and character of
service must be based on his or her total performance of duty and
conduct.
discharge under conditions other than honorable unless the
homosexual act is committed under one of the following
circumstances:
(b) expressly prohibits the issuance of a
It provides Navy and Marine
Reference
(1) By using force, coercion, or intimidation;
(2) with a person under 16 years of age;
(3) with a subordinate in circumstances that violate
customary naval superior-subordinate relationships;
(4) openly in public view;
(5) for compensation;
(6) aboard a naval vessel or aircraft; or
2
(7) in another location subject to military control under
aggravating circumstances noted in the finding that have an
adverse impact on discipline, good order,
the,impact of such activity aboard a vessel or aircraft.
or morale comparable to
i.
Under current standards, an individual separated due to
homosexuality normally receives an honorable discharge if there
are no aggravating factors,
satisfactory.
and the overall trait average is
CONCLUSION:
Based upon Petitioner's overall record of service and
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
current Department of the Navy policy as established in reference
(b) and its radical departure from the policy which was in effect
on 5 May 1948 the date of Petitioner's discharge, the Board
concludes that it would be in the interests of justice to
retroactively apply the standards of reference
Petitioner's case.
Absent evidence to the contrary, it appears
to the Board that Petitioner's only marks were a 4.0 in conduct
and a 3.5 in proficiency and the entry to the contrary in the
record is erroneous.
Accordingly, using the standards of
reference (b), the board finds that relief in, the form of
recharacterization to honorable is appropriate.
(b) to
RECOMMENDATION:
a.
That Petitioner's naval record be corrected to show that
he was issued an honorable discharge by reason of unfitness on
5 May 1948 vice the undesirable discharge actually issued on that
date.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
C . That, upon request, the Veterans Administration be
informed that Petitioner's application was received by the Board
on 16 February 2001.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN
Recorder
3
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulation, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
has been approved by the Board on
authority of reference (a),
behalf of the Secretary of the Navy.
c-W. DEAN
PMIFFER
Executive Director
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