DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 6878-07
7 May 2008
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
—_ mee? SERVICE NO. 1873610
Ref: (a) 10 U.S.C. 1552
(b) SECNAVINST 1910.4B
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
Petitioner, a
1. Pursuant to the provisions of reference (a),
with this
former enlisted member of the Navy, filed enclosure (1)
Board requesting that his discharge be upgraded.
2 The Board, consisting of Mr. WARE vr. CWP and Ms.
“lati reviewed Petitioner's allegations of error and injustice
on 6 May 2008 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record.
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applicable statutes, regulations, and policies.
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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 enclosure (1) was not filed ina
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Marine Corps on 9 July 1959 at
the age of 17. During his enlistment, Petitioner was not the
subject of any disciplinary action. However, Petitioner was in
an unauthorized absence (UA) status for 22 days during the period
from 12 June to 4 July 1961.
ad. On 7 and 10 July 1961 Petitioner admitted that during the
foregoing period of UA he participated in homosexual acts with
civilians.
e. In order to avoid trial by court-martial Petitioner
requested an undesirable discharge. His request was granted and
he was so separated on 17 August 1961. At the time of his
separation, his conduct and proficiency marks were sufficient
enough, under normal circumstances, to warrant a discharge under
honorable conditions.
f. Reference (b) sets forth the Department of the Navy'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 Naval 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 Marine'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 homosexual act
is committed 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;
(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.
g. Petitioner's record fails 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.
The Board’s finding is based on 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 at the time of Petitioner’s discharge. The Board
concludes that it would be in the interest of justice to
retroactively apply the current standards of reference {b) to
Petitioner's case. Using these standards, the Board concludes
that relief in the form of recharacterization is appropriate.
The Board further concludes that a general discharge is warranted
in this case given his satisfactory conduct and proficiency
averages.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he. was issued a general discharge on 17 August 1959 vice the
undesirable discharge actually issued on that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
c. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 10 July 2007.
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 Sten) Doon
Recorder Acting Recorder
2. 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 Regulation, 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.
Te pa SN Chad
Fen. W. DEAN PFETFFER
Executive Director
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