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NAVY | BCNR | CY2005 | 07071-05
Original file (07071-05.rtf) Auto-classification: Approved

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
                                                       WASHINGTON DC 20370 - 100

                                                                                          CRS
 Docket No: 7071-05
23 February 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF


Ref:     (a) Title 10 U.S.C. 1552
 (b)      DODDIR 1332.14
EnCl:    (1) DD Form 149 w/attachments
 (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 18 November 1963.
2.       The Board, consisting of Ms.~MU~ Mr. reviewed Petitioners allegations of error and injustice on January 2007 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 Petitioner’s application 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 was enlisted in the Marine Corps on 30 June 1960.






d.       The record reflects that Petitioner received nonjudicial punishment and was convicted by summary court-martial. The offenses included sleeping on watch and stealing uniforms on three occasions.
e.       On 13 August 1963 Petitioner made a sworn statement that he had committed a pre-service homosexual act and a second homosexual act with a civilian while on active duty. Subsequently, he received two more nonjudicial punishments. The offenses included an unauthorized absence of a day and absence from his appointed place of duty.
f.       On 24 October 1963 the commanding officer recommended that Petitioner be separated with an undesirable discharge by reason of unfitness due to sodomy. Subsequently, on 25 October 1963 he was convicted by special court-martial of willful disobedience of a lawful order, failure to go to his appointed place of duty, and breaking restriction on three occasions. After review by the discharge authority, the recommendation for separation was approved and Petitioner was discharged with an undesirable discharge on 18 November 1963.
g.       Character of service was normally based, in part, on one’s conduct and proficiency averages, both of which were computed from marks assigned during periodic evaluations. Petitioner’s conduct and proficiency averages were both 3.7. The minimum average marks required for a fully honorable characterization of service at the time of Petitioner’s separation were 4.0 in conduct and 3.8 in proficiency. However, since Petitioner was discharged by reason of unfitness, those averages were not used to determine the characterization of service.
h.       Reference (b) sets forth the Department of Defense’s current policies, standards and procedures for administratively separating enlisted service members. With regard to homosexuality, reference (b) declares such behavior to be incompatible with military 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. Reference (b) expressly prohibits the issuance of a discharge under conditions other than honorable unless the individuals committed a homosexual act under one of the following circumstances:
(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;













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(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, 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 Petitioner’s 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 18 November 1963, 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. Using the standards of reference (b), the Board finds that due to Petitioner’s final conduct and overall traits averages, relief in the form of recharacterizatiOfl to a general discharge is appropriate.
RECOI~4ENDATION:
a. That Petitioner’s naval record be corrected to show that he was issued a general discharge by reason of unfitness on 18 November 1963 vice the undesirable discharge actually issued on that date.
b. That 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 25 August 2005.
4. It is certified 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        F. GOLDSMITH
         Recorder         Acting Recorder








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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.


W. DEAN PFIEFFER
Executive Director



































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