DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TOR
Docket No: 10542-09
22 July 2010
Dear A aNNaR
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title It, Waited
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 20 July 2010. The names and votes of the
members of the panel will be furnished upon request. 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 enlisted in the Navy on 5 January 1978 at age 18 and served
without disciplinary incident until 24 September 1979, when you
received nonjudicial punishment (NUP) for conduct prejudicial to
good order and discipline. On 30 December 1980 you received your
second NUP for dereliction of duty.
Your record reflects documentation regarding your participation
in homosexual activity, specifically your engaging in, or
attempting to engage in a homosexual act; and stating that you
were a homosexual who engaged in, desired to engage Iii, cr
imtended to engage in homosexual acts. On 30 November 1981,
while aboard your ship, you committed a forceful act of biting
and/or kissing another female Sailor. As a result, on 8 December
1981, you received NUP for conduct prejudicial to good order and
discipline as evidenced by this homosexual act.
Subsequently, you were processed for an administrative separation
by—reason of homosexuality. After waiving your procedural right
to legal counsel and to present your case to an administrative
discharge board (ADB), on 29 December 1981, your commanding
officer recommended discharge under honorable conditions by
reason of homosexuality as evidenced by your conduct prejudicial
to good order and discipline, even though your homosexual conduct
occurred on board your ship, and you had committed further
misconduct as evidenced by your three NUPs. On 4 January 1982
the discharge authority approved separation under honorable
conditions by reason of homosexuality and on 5 January 1982 you
were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge. It also
considered your assertion that the circumstances surrounding your
discharge are no longer valid. Nevertheless, the Board concluded
these factors were not sufficient to warrant recharacterization
of your discharge given your participation in a forceful
homosexual act in a location subject to military control. [In
your case, the homosexual forceful activity occurred aboard your
ship, and as such is sufficient, even under current standards, to
warrant an other than honorable discharge. In this regard, the
Board concluded you were fortunate to have received a discharge
under honorable conditions. Finally, you were given an
opportunity to defend yourself or possibly obtain a better
characterization of service, but waived your procedural right to
present your case to an ADB. Accordingly, your application has
been denied.
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,
Dears
Executive
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