DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 812-10
26 October 2010
From: Chairman, Board for Correction of Naval Records
eis Secretary of the Navy
Ref: ( 10 U,8 Oe and Mr.
reviewed Petitioner's allegations of error and injustice
on 14 October 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 it appears that enclosure (1) was not filed ina
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 Marine Corps on 4 January 1962.
During his enlistment, he received nonjudicial punishment (NJP)
on three occasions for unauthorized absence from his unit for six
days and failure to go to his appointed place of duty.
a. On 13 September 1964, Petitioner was admitted to the
Neuropsychiatric Department of the U.S. Naval Hospital, Bethesda,
Maryland, and was diagnosed with an emotionally unstable
personality. He was brought to the hospital when he became
unmanageable after drinking heavily. During a consultation with
a medical provider he admitted to having engaged in homosexual
acts. He stated in part that over the past few months he had
increasing difficulty controlling an urge to engage in homosexual
acts with gomeone in the barracks.
e. During an investigation by the Office of Naval Intelligence
(ONI), Petitioner admitted to participating in homosexual acts
and volunteered to take a polygraph examination. The polygraph
examination was administered on 1 October 1964; the test
indicated that he was truthful when he admitted to having engaged
in homosexual acte,.. On,1 Octob 4964 Petitioner submitted a
written statement in which he admitted to participating in
homosexual acts and admitted that he was a homosexual.
f. Subsequently, Petitioner was administratively processed for
separation by reason of unfitness due to participation in
homosexual acts. The discharge authority directed an OTH
discharge and on 12 October 1964 he was so separated. At the
time of his separation, his conduct and proficiency marks were
high enough, under normal circumstances, to warrant a better
characterization of service.
g. Reference (b) sets forth the Department of the Navy's
current policies, standards, and procedures for administratively
separating enlisted service memgers. With, regard to
amosqyuality, reference (b) deélares 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. a
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 OTH conditions unless the homosexual act is
committed under one of the following circumstances:
(1) 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 alrerart; 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.
The Board initially notes Petitioner's participation in
homosexual activities, and does not condone his actions.
However, 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 12 October 1964, 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 (b), 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 satisfactory conduct and proficiency averages and
record of three NJP’s.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
was issued a general discharge on 12 October 1964 vice the OTH
discharge actually issued on that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
c. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 14 October 2010.
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 deliberation, and that the
foregoing is a true and complete record of the Board's
proceedings in the above entitled matter.
ROBERT D. ZSALMAN BRIAN J.“ 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 Regulations, 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.
W. DEAN PF R
Executive etor
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