DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370.510
0
TJR
Docket No: 530-02
20 March 2002
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This is in reference to your application for correction of your
naval record pursuant to' the provisions of Title 10, 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 12 March 2002.
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.
Your allegations of error and
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.
Your record reflects that on 20 December 1957 you
The Board found you enlisted in the Navy on 16 August 1955 at the
age of 18.
were convicted by special court-martial (SPCM) of four periods of
unauthorized absence (UA) totalling 75 days, breaking
restriction, and missing the movement of your ship.
You were
sentenced to confinement for five months, a $250 forfeiture of
pay, and reduction to'
Your record also reflects that in January 1958, during a Naval
Investigative Service interview,
statement in which you admitted to participating and homosexual
acts during the period from 1950 to 1957.
This statement also
noted that while you were in confinement you had conspired-with
another prisoner to give the appearance of participating in a
homosexual act.
request for an undesirable discharge in order to avoid trial by
court-martial for conspiracy and two specifications of sodomy.
Your record also shows that prior to submitting this request, you
conferred with a qualified military lawyer at which time you were
advised of your rights and warned of the probable adverse
On 27 January 1958 you submitted a written
paygrade E-l.
you submitted a written
Subsequently, your
consequences of accepting such a discharge.
commanding officer recommended that you be issued an undesirable
discharge by reason of unfitness due to homosexual involvement.
The Board found your request was granted on 5 February 1958 and
as a result of this action,
court-martial conviction and the potential penalties of a
punitive discharge and confinement at hard labor.
the undesirable discharge on 24 April 1958.
you were spared the stigma of a
You received
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and immaturity and your contention that you made a
mistake when you lied about being a homosexual.
However, the
Board concluded these factors and contention were not sufficient
to warrant recharacterization of your discharge because of the
serious nature of your misconduct.
The Board noted that you
admitted to participating in homosexual acts prior to and after
entry in the Navy, and it appears that you conspired with another
prisoner in an effort to be discharged from the Navy.
settled in the law that an individual who perpetrates a fraud in
order to be discharged should not benefit from the fraud when it
is disapproved.
The Board also concluded that you received the
benefit of your bargain with the Navy when you were discharged at
your request rather than being tried by court-martial, which
could have resulted in a lengthy period of confinement as well as
a punitive discharge.
proper as issued and no change is warranted.
application has been denied.
The Board concluded your discharge was
Accordingly, your
It is well
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.
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
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