DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 26370-5100
SON
Docket No: 10293-09
29 July 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub}: REVIEW OF NAVAL RECORD OF 30m “
Ref: (a) 10 U.S;C. 1552
(b) SECNAVINST 1910.48
Encl: (1) DD Form 149 with attachments
(2} Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the United States Navy, filed enclosure
(1) with this Board requesting, in effect, that his other than
honorable (OTH) discharge be upgraded.
2. The Board, consisting of Mr. W. 9M: . Qe and
Mr, ee ‘reviewed Petitioner's allegations of error and
injustice on 22 July 2010 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. Although enclosure (1) was not filed in a timely manner, it
is in the interest of justice to waive the status of limitations
and review the application on its merits.
c. Petitioner enlisted in the Navy and began a period of
active duty on 28 September 1964. On 4 June 1965, he received
nonjudicial punishment (NUP) for underage drinking and was
awarded 30 days of correctional custody. However it was
suspended for a period of 30 days. On 3 June 1966, Petitioner
submitted a statement in which he confessed, in part, that he had
homosexual tendencies, had participated in homosexual acts,
convinced himself that he was a homosexual at the age of 16, and
was trying to get help dealing with his issues. A medical
evaluation diagnosed Petitioner with sexual deviation,
homosexuality manifested by repeated experiences, and had
accepted that way of life. Subsequently, he was administratively
processed for separation by reason of unfitness due to
participation in homosexual acts. The discharge authority
directed an OTH discharge and on 21 July 1966 he was so
separated. At the time of his separation, his conduct marks were
high enough, under normal circumstances, to warrant a higher
characterization of service.
d. 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
homosexual act is committed 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 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.
CONCLUSION ;:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
It is clear that reference (b), does not mandate a discharge
under other than honorable conditions, but only authorizes such a
characterization if an aggravating factor is found to exist. The
Board concludes that based upon his 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 on 6 July 1966, the date of his discharge, it would be
in the interest of justice to retroactively apply the standards
of reference (b) to his case. Using the standards of reference
(ob), the Board finds that relief in the form of
recharacterization is appropriate. The Board further concludes
that a general discharge is warranted in this case given his NUP
on 4 June 1965.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
was issued a general discharge on 21 July 1966 vice the OTH
discharge, now of record.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
ce. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 28 September 2009.
4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c) 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 BRIAN JY GEORGE
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 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.
Lol
Executive iW Lo
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