DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 8836-09
4 June 2010
This igs 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 2 June 2010. 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.
You reenlisted in the Navy on 1 November 1986 after more than
three years of prior honorable service. Based on the information
currently contained in your record it appears that you received
nonjudicial punishment on two occasions. On 9 September 1990,
you were convicted in civil court in Virginia Beach, Virginia of
driving under the influence. The sentence imposed was a $250
fine, $24 court costs, 30 days in jail (suspended), participation
in the Virginia Alcohol Safety Action Program (VASAP) and 60 days
suspension of driving privileges. After this civil conviction
you were counseled regarding your misconduct and warned that
Further offenses could result in administrative separation. On 9
June 1993, you were convicted in civil court of Virginia Beach,
Virginia of solicitation for an immoral act. The sentence
imposed was a $250 fine and $26 court costs. You were notified
of pending administrative discharge processing with an other than
honorable (OTH) discharge due to misconduct (homosexual act).
You waived all of your procedural rights, including your eagnt to
an administrative discharge board (ADB). On 6 January 1994, you
received the OTH discharge for misconduct due to a homosexual
act.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board found that
these factors were not sufficient to warrant recharacterization
of your discharge given the seriousness of your misconduct that
resulted in a civil conviction and two NUPs. Additionally, the
basis for separation under homosexual act may include preservice,
prior service, or current service conduct or statements. A
member shall be separated if the member has engaged in, attempted
to engage in, or solicited another to engage in a homosexual act
or acts. Finally, the Board noted that you waived the right to
an ADB, your best opportunity for retention or a better
characterization of service. Accordingly, your application has
been denied. The names and votes of the members of the panel
will be furnished upon request.
The Board believes that you may be eligible for veterans’
benefits which accrued during your prior period of honorable
service. However, your eligibility is a matter under the
cognizance of the Department of Veteran Affairs (DVA). In this
regard, you should contact the nearest DVA office concerning your
rights, specifically, whether or not you are eligible for
benefits based on this period of service.
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 Di hey
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