DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

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WASHINGTON DC 20370-510

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TJR
Docket No: 
4 December 2002

3.823-02

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

Secretary of the Navy

Subj:

NAVAL RECORD

Ref: (a)

10 U.S.C. 1552

(b) SECNAVINST 

1910.4B

Encl: (1)
(2)
(3)

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, filed enclosure (1) with this
Board requesting that his discharge be upgraded.

The Board,

consisting.of  Mr. Frankfurt, Ms. Humberd, and Mr.
2.
Leeman, reviewed Petitioner's allegations of error and injustice
on 3 December 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.

Petitioner enlisted in the Navy on 9 January 1951 at the

age of 19.

C .

d.

Petitioner served nearly two years without disciplinary

incident, but on 11 December 1953 he received nonjudicial
punishment (NJP) for failure to obey a lawful order and was
awarded restriction for three days.

e.

On 31 August 1954, during an investigation by the Office

of Naval Intelligence, Petitioner admitted to participating in
homosexual acts with a civilian and another Sailor.
the civilian apparently occurred after he drove Petitioner to
catch a ferry.
bunk, apparently in an open-bay barracks.
Petitioner, he was drunk on at least one of those occasions. On
1 September 1954,
which he requested the opportunity to complete his term of
enlistment, and stressed that he was not a homosexual.

The acts with the Sailor occurred in Petitioner's

Petitioner submitted an additional statement in

According to

The act with

f.

In September 1954 Petitioner was processed for an

administrative separation based on his misconduct as evidenced by
his voluntary statement in which he admitted committing
homosexual acts.
recommended a general discharge, stating, in part, as follows:

On 9 September 1954 the commanding officer

The activity is cognizant of the department's policy in the

administrative handling of homosexual cases, however, due to
Member's faithful service, prior good conduct, aptitude, and
his willingness and desire to become a respected citizen, it
is recommended that consideration be given to release him
under a general discharge.

g-

On 24 September 1954 the Chief of Naval Personnel (CNP)

directed an undesirable discharge by reason of unfitness as
evidenced by Petitioner's 'participation in homosexual acts. On
12 October 1954 Petitioner was so discharged.
Petitioner's conduct and proficiency marks would ordinarily have
warranted an honorable discharge.

At that time,

h.

Reference 

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

With regard to

(b) declares such behavior to be

and procedures for administratively

current policies, standards,
separating enlisted service members.
homosexuality, reference 
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:

(b) expressly prohibits the issuance of a

It provides Navy and Marine

Reference 

(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;

2

(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

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 (b) to Petitioner's case.

the Board concludes that it would

(b) and

 

but it appears that one or more of

Using the standards of reference (b), the Board finds that the
record does not clearly reflect the presence of any of the
foregoing aggravating factors,
Petitioner's homosexual acts occurred openly and in public view.
However, the Board is also aware that even under current
standards, the presence of an aggravating factor does not compel
the issuance of an other than honorable discharge but only
authorizes such a characterization.
Petitioner's period of service of about 45 months was marred by
only one minor disciplinary action, and since his homosexual
activity apparently was not  
judgment may have been clouded by intoxication, the Board
concludes that relief in the form of recharacterization is
appropriate.
However, given that there was some degree of
aggravation, the Board concludes that recharacterization to a
general discharge is the most appropriate course of action.

observed,by  others and Petitioner's

Accordingly, given that

RECOMMENDATION:

That Petitioner's naval record be corrected to show that

cas issued a general discharge on 12 October 1954 vice the

he 
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

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that Petitioner's application was received by the Board on 11
April 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  
matter.

the above entitled

ROBERT D. ZSALMAN
Recorder

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ALAN  E. GOLDSMITH
Acting Recorder

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

t=- 

w . DEAN PFEIFFER
Executive Director

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