DEPARTMENT OF THE NAVY
BOARD
FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 4362-01
19 February 2002
From:
To:
Subj:
Ref:
Encl:
Chairman, Board for Correction of Naval Records
Secretary of the Navy
CORD OF
(a) 10 U.S.C. 1552
(b) SECNAVINST
1910.4B
(1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
Pursuant to the provisions of reference (a), Petitioner, a
1 .
former enlisted member of the Naval Reserve, filed enclosure (1)
with this Board requesting that his discharge be upgraded.
The Board, consisting of Messrs. Pfeiffer, Zsalman, and
2.
Adams, reviewed Petitioner's allegations of error and injustice
on 5 February 2001 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
statute of limitations and review the application on its merits.
C .
Petitioner enlisted in the Navy on 17 November 1964 at the
age of 22.
nonjudicial punishment (NJP) for breach of peace.
During his period of enlistment Petitioner received
d.
On 1 June 1966, during a medical examination, Petitioner
admitted to participating in homosexual acts while under the
influence of alcohol.
e.
On 1 July 1966 Petitioner was apprehended by military
authorities for participating in homosexual acts in a cave while
Petitioner also received nonjudicial punishment (NJP)
on base.
on this date for breach of peace and was awarded a $50 forfeiture
of pay.
f.
On 24 October 1966 the Bureau of Naval Personnel (BUPERS)
directed discharge under other than honorable conditions by
On 8 November 1966 Petitioner was so
reason of unfitness.
discharged.
and proficiency averages were 3.3 and 3.2, respectively.
At the time of his discharge Petitioner's conduct
9.
Character of service is based, in part, on conduct and
overall trait averages which are computed from marks assigned
during periodic evaluations.
in overall traits were required at the time of Petitioner's
separation for a fully honorable characterization of service.
Averages of 3.0 in conduct and 2.7
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.
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;
(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
2
CONCLUSION:
Upon review and consideration of all the evidence of record,
Board concludes that Petitioner's request warrants favorable
action.
the
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 8
November 1966, the date of Petitioner's discharge, the Board
concludes that it would be in the interest of justice to
retroactively apply the standards of reference
Petitioner's case.
Board finds that given Petitioner's final conduct and proficiency
averages, relief in the form of recharacterization to an
honorable discharge is appropriate.
(b) to
Using the standards of reference
(b) the
RECOMMENDATION:
a.
That Petitioner's naval record be corrected to show that
he was issued a honorable discharge on 8 November 1966 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 29 May
2001.
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))
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.
W. DEAN P
3
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