DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 CRS
Docket No: 11377-09
3 February 2011
This is 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 15 December 2010. Your allegations of error and
injustice were reviewed 4n 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 that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
The Board found that you reenlisted in the Navy on 2 March 1987.
A general court-martial convened on 3 July 1999 and convicted you
pursuant to your pleas of guilty of sodomy and indecent assault
onboard a military installation. The court sentenced you to
confinement for six months, forfeiture of $800.00 per month for
six months, and reduction in pay grade to E-3.
On 25 April 2000 an administrative discharge board (ADB)
recommended that you be discharged under other than honorable
conditions by reason of homosexuality, with the execution of the
discharge suspended for 12 months in order to serve sufficient
time for retirement. At the ADB you acknowledged that there was
no aspect of self-defense in your actions. On 24 August 2000 the
Assistant Secretary of the Navy for Manpower and Reserve Affairs
approved the recommendation for discharge but disapproved the
recommended suspension of its execution. You were discharged on
31 August with a discharge under other than honorable conditions.
In its review of your application, the Board carefully considered
your unsubstantiated contentions to the effect that the ADB’s
decision to retain you was improperly rejected, that the conduct
for which you were discharged was clearly consenting adult sexual
activity and that the discharge was unjust for someone so close
to retirement. The Board concluded that those contentions were
insufficient to demonstrate the existence of material error or
injustice in your case, or to warrant recharacterization of your
service. In this regard, the Board noted that current policy
provides that the characterization of service for individuals
discharged for homosexuality will not normally be under other
than honorable conditions; however, such a characterization is
authorized for individuals who commit homosexual acts on board a
military installation, as you did. The Board noted that during
the course of yoursADB you stated that you had no legal
justification or excuse to touch the other person and commit
battery upon him for sex. Further, the Board found no merit in
your requests to be granted one year of active duty for service
credit purposes and restoration to pay grade E-6. Accordingly,
your application has been denied. The names and votes of the
members of the panel will be furnished upon request.
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 PFENF
Executive Dire 1"
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