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NAVY | BCNR | CY2005 | 08712-05
Original file (08712-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
                  -        BOARD FOR CORRECTION OF NAVAL RECORDS
                   2 NAVY ANNEX
                   WASHINGTON DC 20370-S 100

                           CRS
                           Docket No: 8712—05
                            2 November 2006



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 12 October 2006. 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.
The Board found that you enlisted in the Navy on 4 March 1963. On 6 December 1963, in a sworn statement, you stated that you had engaged in 50 homosexual acts prior to your enlistment and an additional 15 homosexual acts during your period of service.
On 13 December 1963 your commanding officer recommended that you be separated with an undesirable discharge by reason of unfitness due to homosexual acts. When informed of the recommendation, you elected to waive the right to present your case to an administrative discharge board. After review by the discharge authority, the recommendation for separation was approved and you were discharged on 27 December 1963 with an undesirable discharge.
On 1 April 1966 the Naval Discharge Review Board (NDRB) denied your request for an upgrade. At that time, you and your counsel admitted that you had lied about being homosexual in order to be discharged.




In its review of your application the Board carefully weighed all
potentially mitigating factors, such as your contention that the undesirable discharge was based on allegations pertaining to your sexual orientation. However, the Board concluded that these factors were not sufficient to warrant recharacterization of your discharge. In this regard, the Board noted that during your service, you made a sworn statement to the effect that you had committed homosexual acts, but many years later, stated to NDRB that you lied about being homosexual in order to be discharged. The Board could not tell whether you were lying in 1963 or lying to the NDRB, but the law is very clear that an individual who procures a discharge by fraud should not benefit from the fraud when it is discovered. 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 PFEIFFER
 Executive Director

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