DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC, 20370-5100

TJ R
Docket No: 
29 August 2003

9449-02

From: Chairman, Board for Correction of Naval Records
To:
Subj: REVIEW OF NAVAL OF RECO

Secretary of the Navy

Ref:

Encl:

(a) 10 U.S.C. 1552
(b) SECNAVINST 
(1) Case summary
(2) Subject's naval record

1910.4B

c

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

1.
former enlisted member of the Marine Corps, filed an application
with this Board requesting that the characterization of his
discharge be changed.

consisting of Messrs.
and
eviewed Petitioner's al
26 August 2003 and, pursuant to its regulations, a
majority determined that the corrective action indicated below
should be taken on the available evidence of record.
material considered by the Board consisted of the enclosures,
naval records, and applicable statutes, regulations, and
policies.
3.
to Petitioner's allegations of error and injustice finds as
follows:

The Board, having reviewed all the facts of record pertaining

Documentary

d

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 limitation and review the application on its merits.
Petitioner enlisted in the Marine Corps on 16 March 1966

at age 19.
completed a Report of Medical History (SF-891 in which he denied
any current or prior homosexual tendencies.

In connection with his enlistment, Petitioner

C .

d.

On 21 March 1966 Petitioner executed a statement in which
he disclosed pre-service homosexual activity.
He stated that he
was aware of what constituted a homosexual act and knew that such

Petitioner
activity, if revealed, would prevent his enlistment.
said that he indicated that he did not have homosexual tendencies
and deceived the recruiters because he did not want the draft
board to find out about his homosexuality and did not want rumors
started regarding his homosexuality.
He further stated that his
reason for disclosing this information was because he wanted to
be separated from the Marine Corps so that he would not get
caught participating in homosexual acts.

e.

One day later Petitioner was diagnosed as a Class III

homosexual. The evaluation report stated that Petitioner was not
feigning homosexuality in order to obtain an early separation or
to avoid disagreeable duty.

f.

Petitioner was then processed for an administrative
separation based on his failure to disclose his pre-service
On 24
homosexual activities, as evidenced by his statement.
March 1966 the commanding officer recommended Petitioner be
issued an undesirable discharge by reason of misconduct due to
fraudulent entry as evidenced by concealment of pre-service
homosexual activities.
On 28 March 1966 the discharge authority
directed an undesirable discharge by reason of misconduct for the
perpetration of a fraudulent induction and, on 6 April 1966,
Petitioner was so discharged after only 22 days of service.

g.

Reference 

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

With regard to

(b) declares such behavior to be

current policies, standards, and procedures for administratively
separating enlisted service members.
homosexuality, reference 
incompatible with Naval Service.
It provides Navy and Marine
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

(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

2

(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

h.

The record fails to reflect the presence of any of the
foregoing aggravating factors.
Under today's standards, if
separated within the first 180 days of active service, an
individual discharged under these circumstances would receive an
uncharacterized entry level separation.
honorable discharge would be issued,
record.

Otherwise, a general or
as warranted by the service

i.

Under standards in effect at the time of Petitioner's

separation, an individual separated due to fraudulent enlistment
normally received an undesirable discharge.
directive, reference (b),

contains no such presumption.

The current

j.

However, he has provided the Board with no

In his application, Petitioner contends that he informed
Marine Corps authorities on 16 March 1966, when he was drafted,
of his homosexuality.
material evidence to support this contention, and the record
contains evidence to the contrary.
MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, a
majority of the Board, consisting of Messrs. Neuschafer and
McPartlin, concludes that Petitioner's request warrants favorable
action.
In reaching its conclusion,
Petitioner's youth and immaturity and the fact that he served
without disciplinary incident.
The majority is also aware that
Petitioner revealed his participation in pre-service homosexual
activities shortly after he was inducted, and did not do so for
the purpose of avoiding hazardous service.
current standards, he would not be discharged under other than
honorable conditions if processed for fraudulent enlistment or
homosexuality.
suffered the consequences of an undesirable discharge for more
than 35 years, the majority concludes that no useful purpose is
served by continuing to characterize Petitioner's service as
having been under other than honorable conditions, and relief in
the form of a general discharge is appropriate.
In view of the foregoing,
injustice warranting the following corrective action.

Based on the foregoing, and since Petitioner has

the majority finds the existence of an

the majority initially notes

Further, under

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MAJORITY RECOMMENDATION:

.

That Petitioner's naval record be corrected to show that

Eas issued a general discharge on 6 April 1966 vice the

he 
undesirable discharge actually issued on that same day.

b.

C .

the Veterans Administration be
application was received by the Board

Report of Proceedings be filed in

disagrees with the majority and concludes that
request does not warrant favorable action.

That a copy of this
Petitioner's naval record.
That, upon request,
informed that Petitioner's
on 1 November 2002.
MINORITY CONCLUSION:
Mr.
Petitioner's
The minority member notes that Petitioner was fully aware that
his homosexual activity would prevent his enlistment in the
Marine Corps, but he deliberately signed the SF 89 which
indicated that he did not have homosexual tendencies.
Accordingly,
by concealing
enlistment because he was afraid of being caught in homosexual
activity.
fraudulent entry supported an undesirable discharge, and since
that discharge was proper at the time,
permitted to change it now.
In view of the foregoing,
warranting corrective action.
MINORITY RECOMMENDATION:

The minority member believes that Petitioner's

the minority finds no injustice

Petitioner fraudulently enlisted in the Marine Corps
such activity,
and he only revealed his fraudulent

Petitioner should not be

That Petitioner's request be denied.
It is certified that a quorum was present at the Board's

4.
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

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