DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-510
0
TJR
Docket No: 6803-00
28 February 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj:
.
Ref:
Encl:
(a)
(b)
(1)
(2)
(3)
10 U.S.C. 1552
VECNAVINST
1910.4A
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 United States Navy, filed enclosure
(1) with this Board requesting, in effect, that his discharge be
upgraded.
The Board, consisting of Ms. McCormick, Mr. Pfeiffer, and Mr.
2.
Shy, reviewed Petitioner's allegations of error and injustice on
27 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 12 January 1951 after
three years of prior honorable service on active duty in the
Naval Reserve.
disciplinary action during either of these periods of service.
Petitioner was not the subject of any
d.
On 1 April 1955 Petitioner admitted to participating in
homosexual acts.
Petitioner requested an undesirable discharge.
In order to avoid trial by court-martial
His request was
granted and he was so separated on 9 May 1955. At the time of
his separation, his conduct and proficiency marks were high
enough, under normal circumstances,
discharge.
to warrant a fully honorable
e.
Reference
(b) sets forth the Department of the Navy's
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.
It provides Navy and Marine
and procedures for administratively
With regard to
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
(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
f.
Petitioner's military records fail to disclose the
presence of any of the aggravating circumstances which would
warrant the issuance of an other than honorable discharge under
the provisions of reference (b).
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
Based upon 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 9
May 1955, 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 (b) to Petitioner's case.
the standards of reference (b), the Board finds that relief in
the form of recharacterization is appropriate.
concludes that an honorable discharge is warranted in this case
given his satisfactory conduct and proficiency averages,-
The Board further
(b) and
Using
RECOMMENDATION:
a.
Th; Petitioner's naval record be corrected to show that
he was issued an honorable discharge on 9 May 1955 vice the
undesirable discharge actually issued on that date.
b.
That a copy of this
Petitioner's naval record.
C .
That, upon request,
informed that Petitioner's
on 10 October 2000.
Report of Proceedings be filed in
the Veterans Administration be
application was received by the Board
It is certified that a quorum was present at the Board's
4.
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
ALAN E.
Acting Recorder
GOLDSMITH
Pursuant to the delegation of authority set out in Section
5.
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 PFEIFFER
Executive Director
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