DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

S

TJR
Docket No: 2366-02
4 October 2002

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD 0

Ref: (a)
(b)
Encl: (1)
(2)
(3)

10 U.S.C. 1552
SECNAVINST 

1910.4B

DD Form 149 with attachments
Case summary
Subject's naval record

Pursuant to the provisions of reference (a), Petitioner, a

1.
former enlisted member of the Navy,
Board requesting that his discharge be upgraded.

filed enclosure (1) with this

The Board,

consisting*of  Messrs. Brezna, Kastner, and

2.
Pauling, reviewed Petitioner's allegations of error and injustice
on 1 October 2002 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations, and policies.

Documentary material considered by

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 enclosure (1) was not filed in a

timely manner, it is in the interest of justice to waive the
statue of limitations and review the application on its merits.

C .

Petitioner enlisted in the Navy on 2 April 1952.
the period from 3 April 1953 to 30 June 1954 he received
nonjudicial punishment (NJP) on two occasions for absence from
his appointed place of duty and disobedience; and was convicted
by a summary court-martial and a special court-martial of a 23
day period of unauthorized absence (UA),
his ship, disrespect, breach of peace,

missing the movement of
and being out of uniform.

During

d.

On 17 May 1955, during an investigation by the Office of

Naval Intelligence, Petitioner admitted to participating in a
homosexual act on the night of 7 May 1955, near an athletic
On 13 June 1955,
field, while under the influence of alcohol.
during a psychiatric examination,
Petitioner stressed that even
though he had participated in a homosexual act, he was a passive
and uneager partner.

e.

On 27 June 1955 Petitioner was processed for an

NJPs and two court-martial convictions, and his voluntary

administrative separation based on his misconduct as evidenced by
three 
statement in which he admitted commission of a homosexual act
while intoxicated.
recommendation, in part, as follows:

The commanding officer stated in the

I believe that he is in no way a true or confirmed

homosexual, and that such traits are not even strongly latent
in his personality.
I believe that he did not solicit his
partner but was rather victimized by a confirmed homosexual
while drinking.
homosexual relationships and I see no reason why we should
expect him to have any in the future.

I believe that he has had no previous

f.

On 19 July 1955 the Chief of Naval Personnel (CNP)

directed an undesirable  
evidenced by Petitioner's homosexual act.
Petitioner was so discharged.

diescharge  by reason of unfitness as
On 4 August 1955

g.

Reference (b) sets forth the Department of the Navy's

With regard to

and procedures for administratively

current policies, standards,
separating enlisted service members.
homosexuality, reference (b) declares such behavior to be
incompatible with Naval Service.
Corps officials with the authority to involuntarily separate
those service members who commit a homosexual act or acts.
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:

Reference (b) expressly prohibits the issuance of a

It provides Navy and Marine

If

(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;

2

(5) for compensation;

(6) aboard a naval vessel or aircraft; or

(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.
The record fails to clearly reflect the presence of the foregoing
aggravating factors.

or morale comparable to

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board now finds the existence of an injustice warranting
corrective action.

Based on Petitioner's overall record of service and current
Department of the Navy policy as established in reference (b) and
its radical departure from the policy which was in effect on the
date of Petitioner's discharge,
be in the interest of justice to retroactively apply the
standards of reference (b) to Petitioner's case.

the Board concludes that it would

Using the standards of reference (b), the Board finds that relief
in the form of recharacterization is appropriate.
Although the
homosexual act occurred near an athletic field and might have be
deemed to have occurred in openly in public view, the Board is
aware that the other individual initiated the homosexual activity
and Petitioner apparently was not an enthusiastic participant.
Additionally, the act occurred at night.
Based on the foregoing, and since Petitioner received NJP on two
occasions, and was convicted by two courts-martial, the Board
concludes that recharacterization to a general discharge is
appropriate.
RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show that

he was issued a general discharge on 4 August 1955 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 14
March 2002.

3

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.

gp

/

ROBERT D. ZSALMAN
Recorder

ALAN 
Acting Recorder

E. GOLDSMITH

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
authority of reference (a),
has been approved by the Board on
behalf of the Secretary of the Navy.