DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 5389-10
11 February 2011
From: ,Chairman, Board for Correction of Naval Records
To: ysecretary of the Navy
Subj :g REVIEW_OF NAVAL RECORD BEET is Py
Ref: fal) 16 U.8.0. 1S52
a
(b) SECNAVINST 1910.4B
Fncel: (1) DD Form 149 dtd 5 Oct 10 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. Geberth, Mr. Hotopp, and Mr.
Sproul, reviewed Petitioner's allegations of error and injustice
on 9 February 2011 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 met filed in a
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
c. Petitioner reenlisted in the Navy on 3 November 1950 after
more than eight years of honorable service. During his
enlistment, he received nonjudicial punishment (NUP) on one
occasion for disobeying a lawful order.
d. On 5 January 1954, while undergoing a security check,
Petitioner made a voluntary statement to Navy Investigative
Service (NIS) in which he admitted to participating in homosexual
acts both while he was a civilian and during his last
enlistment.
e. Petitioner admitted to being arrested in Los Angeles,
California, after he was discharged in 1946 for participating in
a homosexual act with a civilian and was sentenced to 30 days in
jail. He further admitted to participating in two other
homosexual acts with civilians during the current his last
enlistment period. He stated at the time of each of the
homosexual acts he had been drinking heavily.
f. Subsequently, a charge of sodomy was preferred against
Petitioner. On 24 February 1954, he submitted a written request
for an#undesirable discharge for the good of the service in lieu
of trial by court-martial. The discharge authority approved and
directed an undesirable discharge due to unfitness. On 24 March
1954 he was so separated. At the time of his separation, his
conduct marks were high enough, under normal circumstances, to
warrant a general characterization of service.
g. 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 other than honorable 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 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 aireratt.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action 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
24 March 1954, the date of his discharge. The Board believes ae
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
conduct mark average and record of one NUP.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that he
was issued a general discharge on 24 March 1954 vice the OTH
discharge actually issued on that date.
b. That any material or entries inconsistent with or relating
to the Board’s recommendation be corrected, removed or completely
expunged from Petitioner’s record and that no such entries or
material be added to the record in the future.
c. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential fill
maintained for such purpose, with no cross reference being made a
part of Petitioner’s naval record.
d. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 14 May 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 }) Aceagh
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.
la DoS)
W. DEAN PFEIF
Executive dir
NAVY | BCNR | CY2002 | 03823-02
DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORD S 2 NAVY ANNE X WASHINGTON DC 20370-510 0 TJR Docket No: 4 December 2002 3.823-02 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: NAVAL RECORD Ref: (a) 10 U.S.C. Based on Petitioner's overall record of service and current Department of the Navy policy as established in reference its radical departure from the policy which was in effect on the date of Petitioner's discharge, be in the interest...
NAVY | BCNR | CY2002 | 00614-02
Pursuant to this Reference (b) sets forth the Department of the Navy's With regard to current policies, standards and procedures for administratively separating enlisted servicemembers. 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 the date of Petitioner's discharge, the Board concludes that it would be in the interests of justice to retroactively apply the standards of reference (b)...
NAVY | BCNR | CY2010 | 09868-10
DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX WASHINGTON DC 20370-5100 TIR Docket No: 9868-10 24 June 2011 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed an application with this Board requesting that the characterization of his undesirable discharge be changed. The minority member notes that Petitioner’s...
NAVY | BCNR | CY2002 | 02366-02
diescharge by reason of unfitness as On 4 August 1955 g. Reference (b) sets forth the Department of the Navy's With regard to and procedures for administratively current policies, standards, separating enlisted service members. Based on Petitioner's 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 the date of Petitioner's discharge, be in the interest of justice to...
NAVY | BCNR | CY2002 | 02432-02
Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with this Board requesting that his discharge be upgraded. His admission of homosexual activity was confirmed by e. On 14 May 1958 Petitioner requested discharged in lieu of court-martial for the good of the service for his participation in homosexual acts. A conduct average of 4.0 was required for a Accordingly, had Petitioner been h. Reference (b) sets forth the...
NAVY | BCNR | CY2007 | 06878-07
Pursuant to the provisions of reference (a), with this former enlisted member of the Navy, filed enclosure (1) Board requesting that his discharge be upgraded. f. Reference (b) sets forth the Department of the Navy's current policies, standards, and procedures for administratively separating enlisted service members. It provides Navy and Marine Corps officials with the authority to involuntarily separate those service members who commit a homosexual act or acts.
NAVY | BCNR | CY2005 | 09829-05
Pursuant to the provisions of reference (a), Petitioner, Subject's brother-in-law and conservator of her estate, filed an application with this Board requesting a better characterization of service then the undesirable discharge issued on 28 October 1964. After review, the discharge authority directed an undesirable discharge by reason of unfitness and she was so discharged on 28 October 1964, d. Reference (b) sets forth the Department of the Defense's current polices, standards and...
NAVY | BCNR | CY2001 | 00031-01
the Board consisted of the enclosures, naval records, and applicable statutes, regulations, and policies. The Board believes that this act circumstances with an adverse impact The Board initially notes Petitioner's participation in homosexual activities included one such act which occurred while she was on watch. that based upon Petitioner's overall record of service and current Department of the Navy policy as established in reference (b) and its radical departure from the policy which...
NAVY | BCNR | CY2002 | 04362-01
the Board consisted of the enclosures, naval records, and applicable statutes, regulations, and policies. Averages of 3.0 in conduct and 2.7 h. Reference (b) sets forth the Department of the Navy's With regard to and procedures for administratively current policies, standards, separating enlisted service members. the Based on Petitioner's 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...
NAVY | BCNR | CY2010 | 11365-10
DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX WASHINGTON DC 20370-5100 TIR Docket No: 11365-10 1 August 2011 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref; (a) 10 U.S.C, 1552 (b) SECNAVINST 1910.44 Encl: DD Form 149 with attachments (1) (2) Case summary (3) Subject's naval record 1. former enlisted member of the United States Navy, filed enclosure (1) with this Board requesting that his discharge be upgraded. Reference (b)...