DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
CRS
Docket No:
22 October
4645-01
2001
From: Chairman, Board for Correction of Naval Records
To:
Subj:
Secretary of the Navy
RECORD OF
Ref: (a) 10 U.S.C. 1552
(b) SECNAVINST
1910.4B
Encl: (1)
(2)
(3)
DD Form 149 w/attachments
Case Summary
Subject's naval record
filed enclosure (1) with this
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy,
that his naval record be corrected
Board requesting, in effect,
to show a more favorable type of discharge than the undesirable
discharge issued on 12 August 1968.
2. The Board, consisting of Messrs. Pfeiffer, Swarens, and
Leeman, reviewed Petitioner's allegations of error and injustice
on 17 October 2001 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
Documentary material considered by
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
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 Navy on 9 September 1965 at age
At that time he had completed twelve years of formal
18.
education.
d. On 25 July 1968 Petitioner made a sworn statement to the
effect that during his service, he had committed off-base
homosexual acts with civilians.
e. On 25 July 1968 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 12 August 1968.
After review by the discharge authority, the
f. Character of service was normally based, in part, on one's
conduct and overall traits averages, both of which were computed
from marks assigned during periodic evaluations.
Petitioner's
conduct and overall traits averages were 3.2 and 3.4,
respectively.
honorable characterization of service at the time of Petitioner's
separation were 3.0 in conduct and 2.7 in overall traits. .
The minimum average marks required for a fully
g. 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.
It provides Navy and Marine
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
(1)
(2)
(3)
(4)
(5)
;76;
USihg force, coercion, or intimidation;
By
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.
h. Petitioner's military records fail to disclose the presence
of any of the aggravating circumstances which would warrant the
issuance of an other than honorable discharge under the
provisions of reference (b).
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
Based upon Petitioner's overall record of service and
2
current Department of the Navy policy as established in reference
(b) and its radical departure from the policy which was in effect
on 12 August 1968, 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 overall
traits averages, relief in the form of recharacterization to
honorable is appropriate.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
Using the standards of reference (b), the
a. That Petitioner's naval record be corrected to show that he
was issued an honorable discharge by reason of unfitness on 12
August 1968 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 11
June 2001.
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.
and that the foregoing is a true and
._
ROBERT D. ZSALMAN
Recorder
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
authority of reference (a),
behalf of the Secretary of the Navy.
has been approved by the Board on
Acting Recorder
3
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