DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SJN
Docket No: 00165-10
12 October 2010
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 5 October 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 enlisted in the Navy and began a period of active duty on
30 July 1965. The Board found that you received three
nonjudicial punishments (NUJP’s) for four periods of unauthorized
absence (UA) totaling 39 days. On 31 January 1969, as a result
of a sworn statement you gave to an agent of the Naval
Intelligence Agency, you submitted a written request for a good
of the service discharge in order to avoid trial by court-martial
for three specifications of sodomy. Prior to submitting this
request for discharge, you conferred with a qualified military
lawyer, were advised of your rights, and were warned of the
probable adverse consequences of accepting such a discharge.
Your request for discharge was granted and on 18 February 1969,
you received an undesirable discharge due to unfitness for the
good of the service in lieu of trial by court-martial. Asa
result of this action, you were spared the stigma of a court-
martial conviction and the potential penalties of a punitive
discharge and confinement at hard labor.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth, record of
service, service in Vietnam, post-service accomplishments, and
contention that you “said some things as to your sexual
orientation to get out of the Navy.” Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge given your misconduct that
resulted in three NUP’s for periods of UA totaling over 30 days,
charges being preferred to a court-martial for serious offenses,
and request for discharge. The Board believed that considerable
clemency was extended to you when your request for discharge was
approved. The Board also concluded that you received the benefit
of your bargaifi with the Navy when your request for discharge was
granted and should not be permitted to change it now. With
regard to your contention, it is well settled in the law that if
a Sailor procures a discharge by fraud, he should not benefit
from the fraud when it is discovered. Therefore, if you lied to
get out of the military as you contend, no corrective action
would be appropriate. 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,
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