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NAVY | BCNR | CY2004 | 00398-04
Original file (00398-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTtON OF NAVAL RECORDS
         2 NAVY ANNEX    
WASHINGTON DC 20370-5100




                                    JRE
                                    Docket No. 00398 - 04
                                                                                 27 July 2004


This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 22 July 2004. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this regard the Board concluded that you were properly discharged under honorable conditions by reason of fraudulent entry on 24 June 1982, based on your concealment of your pre-service history of homosexual activity. It rejected your contention to the effect that your were the victim of a sexual assault, rather than a willing participant in homosexual activity, as the evidence of record does not support that contention. It also concluded that your disability evaluation proceedings were properly terminated, because a separation for misconduct takes precedence over, and generally precludes, disability evaluation processing. In addition, it concluded that as your disability was mild when you were discharged, and would not have warranted a rating in excess of 10%, you would not have qualified for disability retirement even if you had not been separated for fraudulent entry. The fact that the Department of Veterans Affairs (VA) raised your disability rating from 10 to 50% effective on 5 April 1988, was considered insufficient to demonstrate that you were severely impaired by your disability at the time of your discharge. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.









I t is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.
Sincerely,

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