DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
TJR
Docket No: 2432-02
9 October 2002
Chairman, Board for Correction of Naval Records
Secretary of the Navy
10 U.S.C. 1552
SECNAVINST
1910.4B
DD Form 149 with attachments
Case summary
Subject's naval record
::;
(1)
(2)
(3)
From:
To:
Subj:
Ref:
Encl:
1.
Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting that his discharge be upgraded.
The Board, consisting of Mr. McBride, Ms. McCormick, and Mr.
2.
McPartlin, reviewed Petitioner's allegations of error and
injustice on 8 October 2002 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.
Documentary material
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 Marine Corps Reserve on 22
August 1956 at the age of 17,
extended active duty.
and immediately began a period of
d.
Petitioner served without incident until 24 April 1958,
when he admitted to participating in two homosexual acts with
civilians.
a statement from one of his homosexual partners.
His admission of homosexual activity was confirmed by
e.
On 14 May 1958 Petitioner requested discharged in lieu of
court-martial for the good of the service for his participation
in homosexual acts.
f.
On 1 July 1958 the discharge authority directed an
undesirable discharge by reason of unfitness as evidenced by
Petitioner's homosexual acts.
discharged.
On 1 August 1958 he was so
g*
At the time of his discharge,
Petitioner's average mark in
conduct was 3.8.
fully honorable discharge.
discharged under more favorable circumstances, he would have
received a general discharge instead of an honorable discharge.
A conduct average of 4.0 was required for a
Accordingly, had Petitioner been
h.
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. 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:
Reference (b) expressly prohibits the issuance of a
It provides Navy and Marine
(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
(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
The record fails to clearly reflect the presence of any of the
foregoing aggravating factors.
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
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
the Board finds that relief in the form of recharacterization is
appropriate.
insufficient for an honorable discharge, the Board concluded that
a general discharge is appropriate.
Since Petitioner's average mark in conduct was
(b) to Petitioner's case.
the Board concludes that it would
(b) and
In this regard,
RECOMMENDATION:
a.
That Petitioner's naval record be corrected to show that
he was issued a general discharge on 1 August 1958 vice the other
than honorable 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.
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
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))
3
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.
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