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NAVY | BCNR | CY2006 | 00816-06
Original file (00816-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 20370-5100


                                    CRS
                                    Docket No: 816-06
                                                                                  7 March 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 23 February 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 Naval Reserve in the Navy on 20 September 1978. On 6 November 1980 you made a sworn statement that you had committed at least three homosexual acts onboard your ship. On 9 November 1980 you were convicted by a summary court-martial of possession of marijuana.
On 24 November 1980 your commanding officer recommended that you be separated with a general discharge by reason of misconduct due to homosexual acts. When informed of this recommendation, you elected to waive the right to submit a statement in response to the discharge action. After review by the discharge authority, the recommendation for separation was approved and on 23 January 1981 you received a general discharge by reason of misconduct.
         In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth and the
contention, in effect that you lied about being homosexual in order to
be discharged. However, the Board concluded that these factors were
not sufficient to warrant recharacterjzatjon of your discharge. In
this regard, the Board noted that current policy provides that the characterization of service for individuals discharged due to homosexuality will not normally be under other than honorable conditions. However, such a characterization is authorized for individuals such as yourself who commit homosexual acts onboard a naval vessel. Therefore, you were fortunate to received a general discharge. The Board also considered your assertion that you lied about being homosexual in order to be discharged, but could not determine if you were lying then or are lying now. Furthermore, 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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