DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 6477-07
13 May 2008
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, 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 6 May 2008. 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
Prior to your enlistment you responded ‘no’ to question number 75
concerning sexual activities, specifically, “Have you ever
engaged in any sexual activity with a person who is of the same
sex as yourself.”
You enlisted in the Navy on 9 February 1965 at age 17. Shortly
thereafter, on 16 February 1965, you submitted a written
statement regarding you reason for enlistment. You stated, in
part, that you marked ‘no’ to item/question 75 because you wanted
to enlist in the Navy to see the world, complete your high school
education, and try to enter radio school.
As a result of concealing your pre-service homosexual activities,
you were notified of pending administrative separation action by
reason of fraudulent entry. At that time you waived your right
to consult with legal counsel and to submit a statement in
rebuttal to the aforementioned notification. On 3 March 1965
your commanding officer recommended separation by reason of
misconduct due to fraudulent enlistment. This recommendation
stated, in part, that you deliberately failed to reveal your
participation in homosexual acts and/or your homosexual
tendencies, thereby perpetrating a fraudulent enlistment. On 15
March 1965 the discharge authority directed a general discharge
by reason of misconduct due to fraudulent entry, and on 19 March
(1965 you were so separated and assigned an RE-4 reenlistment
code.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to have your discharge upgraded to
honorable. It also considered your assertion of lack of legal
representation and advice. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge because of the seriousness of your failure to
disclose your pre-service homosexual activities. Finally, there
is sufficient evidence in the record that is contrary to your
assertion that you were not afford adequate legal representation
and advice. 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,
Tt SS Cut
|
ROBERT D\-ZSALMAN
Acting Executive Director
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