DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20870-5100
CRS
Docket No: 11857-08
31 July 2009
From: Chairman, Board for Correction cf Naval. Records
To: Secretary of the Navy
pit gtd in
‘ , REVIEW OF
NAVAL RECORD
Ref: (a} Title 10 U.S.c. 1552
(b) SECNAVINST 1910.48
Encl: {1) DD Form 149
(2) Subject's naval record
1. Pursvant to the provisions of reference (a), Petitioner
applied to this Board requesting that his naval record be
corrected to show a more favorable type of discharge than the
undesirable discharge issued on 26 November 1951.
Meet reviewed Petitioner's allegations of error and injustice
5 July 2009 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. Petitioner enlisted in the Navy on 8 January 1949. On
29 October 1951 he made a sworn statement that he often dressed
as a woman and committed homosexual acts with civilians.
c. Petitioner's commanding officer recommended that he be
separated from the Navy with an undesirable discharge by reason
of unfitness due to homosexual acts. After review by the
discharge authority, the recommendation for separation was
approved and Petitioner was discharged with an undesirable
discharge on 26 November 1951.
a. At the time of Petitioner's discharge, character of
service for Sailor’s not discharged for cause was based, in part,
on conduct and overall trait averages both of which were computed
from marks assigned during periodic evaluations. Petitioner's
conduct and overall trait averages were 4.0 and 3.8,
respectively. The minimum average marks required for a fully
honorable characterization of service were 3.25 in conduct and
2,75 in overall traits on 26 November 1951.
e. 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 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:
(L) By using force, coercion, or intimidation;
(2) with a person under 16 years of age;
(3) with a subordinate in circumstances that violates
customary naval super-~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
and good order, or morale comparable to the
impact of such activity aboard a vessel or
aircraft.
In Petitioner’s case, his military records fail to disclose the
presence of any aggravating circumstances which would warrant the
issuance of a discharge under other than honorable conditions
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
(bo) and its radical departure from the policy which was in effect
on 26 November 1951, 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. The Board finds that given Petitioner’s final
conduct and overall trait averages, relief in the form of
BO
recharacterization to honorable is appropriate.
R]
a.
ECOMMENDATION :
That Petitioner’s naval record be corrected to show that he
was issued an honorable discharge by reason of.unfitness on 26
November 1951.
b.
4,
matter.
ROBERT D. ZSALMAN AMES LA 3
Recorder , Acting Recorder
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.
That a copy of this Report of Proceedings be filed in
Petitioner's naval record,
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
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