DEPARTMENT OF THE NAVY
BOARD FOR C O R R E C T I O N O F NAVAL RECORDS
2 N A V Y A N N E X
WASHINGTON D C 2 0 3 7 0 - 5 1 0 0
CRS
Docket No: 3886-03
12 August 2003
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
L RECORD 0
Ref: (a) 10 U.S.C. 1552
(b) SECNAVINST 1910.4B
Encl: (1) DD ,Form 149 wlattachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting, in effect, that his naval record be
corrected to show a more favorable type of discharge than the
undesirable discharge issued on 2 July 1964.
2. The Board, consisting of Ms. Nofziger, Mr. Dunne, and Mr.
Swarens, reviewed Petitioner's allegations of error and injustice
on 9 July 2003 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
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
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
- c. petitioner reenlisted in the Marine Corps after more than
three years of prior active service.
d. On 19 February 1963 Petitioner was convicted by a special
court-martial of stealing a government ambulance, willfully
damaging the ambulance, driving in a reckless manner, and drunk
and disorderly conduct. On 21 January 1364 he was convicted by
civil authorities of reckless driving. On 31 March 1964 he
received nonjudicial punishment (NJP) for absence from his
appointed place of duty.
e. On 8 May 1964 Petitioner made a statement to the effect
that during his service, he had committed homosexual acts with
civilians. Subsequently, he received a second NJP for absence
from his appointed place of duty.
f. On 9 June 1964, after Petitioner was advised of
administrative separation action and waived his right to an
administrative discharge board, the commanding officer
recommended that he be separated with an undesirable discharge by
reason of unfitness due to homosexual acts. After review by the
discharge authority, the recommendation for separation was
approved and Petitioner was discharged with an undesirable
discharge on 2 July 1964.
g. Character of service is normally based on conduct and
proficiency averages, both of which are computed from marks
assigned during periodic evaluations. Petitioner's conduct and
proficiency averages were 3.5 and 4.0, respectively. The minimum
average marks for a fully honorable characterization of service
at the time of Petitioner's separation were 4.0 in conduct and
3.8 in proficiency.
h. Reference (b) sets forth the Department of the Navy's
current policies, standards and procedures for administratively
separating enlisted servicemembers. With regard to
homosexuality, reference (b) declares such behavior to be
incompatible with naval service. It provides Navy and Marine
Corps officials with the authority to involuntarily separate
those servicemembers who commit a homosexual act or acts. If
separated, the servicememberls discharge and character of service
must be based on his or her total performance of duty and
conduct. Reference (b) expressly prohibits the issuance of a
discharge under conditions other than honorable unless the
individuals committed a hvn~csexual act under ohe of the following
circumstances:
By using force, coercion, or intimidation;
with a person under 16 years of age;
with a subordinate in circumstances that violate
customary naval superior-subordinate
relationships;
openly in public view;
for compensation;
aboard a naval vessel or aircraft; or
in another location subject to military control
under aggravating circumstances noted in the
finding that have an adverse impact on discipline,
good order, or morale comparable to the impact of
such activity aboard a vessel or aircraft.
i. 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.Petitionerfs 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 2 July 1964, the date of Petitioner's discharge, the Board
concludes that it would be in the interests of justice to
retroactively apply the standards of reference (b) to
Petitioner's case. Given Petitioner's final conduct and
proficiency averages, the Board concludes that relief in the form
of recharacterization to a general discharge is appropriate.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
was issued a general discharge by reason of unfitness on 2 July
1964 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 8 May
2003.
4 . It is eel-tified 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
ALA E.
Acting Recorder
LDSMITH
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 Regulations, 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.
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