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NAVY | BCNR | CY2005 | 02849-05
Original file (02849-05.doc) Auto-classification: Denied

                               DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                  2 NAVY ANNEX

                                WASHINGTON DC 20370-5100


      TRG
                                                         Docket No: 2849-05
                                                         14 October 2005








      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 4
      October 2005. 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.

      You enlisted in the Navy on 3 August 1989 at age 22. It appears that
      while in recruit training, you were discovered committing a
      homosexual act in the barracks. On 25 September 1989, you received
      nonjudicial punishment for committing sodomy.

      Based on your misconduct, you were processed for an administrative
      separation. In connection with this processing, you elected to waive
      the right to have your case heard by an administrative discharge
      board. Subsequently, the commanding officer recommended that you be
      discharged under other than honorable conditions. After review, the
      discharge authority directed discharge under other than honorable
      conditions and you were so discharged on 14 December 1989. At that
      time, you were not recommended for reenlistment and were assigned an
      RE-4 reenlistment code.

      On 26 June 2000 you submitted an application to the Naval Discharge
      Review Board claiming that you were no longer homosexual, your sexual
      proclivities were caused by others while in the service, and you were
      the victim in this matter. You state that once you returned to
      civilian life you “straightened out”. In its decisional document, the
      NDRB denied relief and noted that you had admitted to initiating and
      performing homosexual acts on more than one occasion. In your
      application to this Board, you state that “today I would never make
      up such a story.”





In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your desire to reenter the
military. However, the Board found that these factors were not sufficient
to warrant recharacterization of your discharge. Regulations allow for the
issuance of a discharge under other than honorable conditions to an
individual who commits homosexual acts if certain aggravating factors are
present. In this regard, your homosexual acts occurred openly and in public
view in the barracks head. It is unclear from your statement whether you
lied about the details of the homosexual acts or the fact that the
homosexual acts occurred. However, it is well settled in the law and an
individual who perpetrates a fraud in order to be discharged should not
benefit from that fraud when it is discovered. The Board concluded that
your discharge was proper as issued and no change is warranted.

Regulations require the assignment of an RE-4 reenlistment code when an
individual is discharged by reason of homosexuality. Since you have been
treated no differently than others in your situation, the Board could not
find an error or injustice in the assignment of the RE-4 reenlistment code.

Accordingly, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.

It 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



                                             W. DEAN PFIEFFER


















                                      2

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