DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
CRS
Docket No: 3908-01
17 December 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Sub'
Ref:
': REVIEW OF NAVAL RECORD OF
u
(a) 10 U.S.C. 1552
(b) SECNAVINST
1910.4B
Encl: (1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner,, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting, in effect, that his naval record be
corrected to show a more favorable type of discharge than the
undesirable discharge issued on 21 August 1964.
2. The Board, consisting of Messrs. Pfeiffer,
McCulloch, reviewed Petitioner's allegations of error and
injustice on 12 December 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes,
regulations and policies.
Leeman, and
Documentary material
3. The Board, having reviewed all the facts of record pertaining
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 enclosure (1) was not filed in
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 Marine Corps on 5 April 1962 at
age 17.
d. A special court-martial convened on 19 February 1964 and
found Petitioner guilty of an unauthorized absence of 118 days.
The court sentenced him to confinement at hard labor for six
months, forfeitures of $50 per month for six months, and
reduction in rank.
e. On 22 April 1964 Petitioner made a sworn statement to the
effect that prior to and during his service, he had committed
homosexual acts with civilians.
f. On 28 July 1964 the commanding officer recommended an
undesirable discharge by reason of unfitness due to homosexual
acts.
recommendation for separation was approved and Petitioner was
discharged with an undesirable discharge on 21 August 1964.
After review by the discharge authority, the
cl* Character of service was normally based, in part, on one's
Petitioner's
conduct and proficiency averages,
from marks assigned during periodic evaluations.
conduct and proficiency averages were 3.5 and 4.3, respectively..
The minimum average marks required for a fully honorable
characterization of service at the time of Petitioner's
separation were 4.0 in conduct and 3.8 in proficiency.
since Petitioner was discharged by reason of unfitness, those
averages were not used to determine the characterization of
service.
both of which were computed
However,
h. Reference (b) sets forth the Department of the Navy's
With regard to
current policies, standards and procedures for administratively
separating enlisted servicemembers.
homosexuality, reference (b) declares such behavior to be
incompatible with naval service.
Corps officials with the authority to involuntarily separate
those servicemembers who commit a homosexual act or acts. If
separated, the servicemember'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
individuals committed a homosexual act under one of the -following
circumstances:
Reference (b) expressly prohibits the issuance of a
It provides Navy and Marine
(1)
(2)
(3)
(4)
I:;
(7)
By using force, coercion, or intimidation;
with a person under 16 years of age;
with a subordinate in circumstances that violate
customary naval superior-subordinate
relationships;
openly in public view;
for compensation;
aboard a naval vessel or aircraft; or
in another location subject to military control
under aggravating circumstances noted in the
finding that have an adverse impact on discipline,
good order, or morale comparable to the impact of
such activity aboard a vessel or aircraft.
i. Petitioner's military records fail to disclose the presence
2
of any of the aggravating circumstances which would warrant the
issuance of an other than honorable discharge under the
provisions of reference (b).
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 21 August 1964, 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 (b) to
Petitioner's case.
Board finds that given Petitioner's final conduct and proficiency
averages, relief in the form of recharacterization to a general
discharge is appropriate.
Using the standards of reference (b), the
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
was issued a general discharge by reason of unfitness on 21
August 1964 vice the undesirable discharge actually issued on
that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner% naval record.
C . That, upon request, the Veterans Administration be informed
that Petitioner's application was received by the Board on 14 May
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
Acting 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 Regulations, 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.
4
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