DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 SION
Docket No: 06363-10
11 April 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of ‘the Navy
a) 20 O.8.€. Lose
(b) SECNAVINST 1910.4B
Encl: (1) DD Form 149 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 Navy, filed enclosure (1) with this
Board requesting, in effect, that his undesirable discharge (UD)
which he received on 13 June 1945 be upgraded.
2. The Board, consisting of Mr. Hicks, Ms. Zivnuska, and
Mr. Dunn, reviewed Petitioner's allegations of error and
injustice on 5 April 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 palaces .
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 enclosure (1) was not filed ina timely manner,
4t is in the interest of justice to waive the statue of
limitations and review the application on its merits.
c. Petitioner enlisted in the Navy and began a period of
active duty on 21 April 1942. The Board found that based on the
information currently contained in his record it appears that he
served without incident until 1 May 1945, when he was charged
with scandalous conduct tending to the destruction of good
morals, after he and another servicemember were apprehended while
committing a homosexual act. At that time he consented to accept
a UD to avoid trial by court-martial. Subsequently, he was
administratively processed for separation by reason of unfitness
due to participation ina homosexual act. His commanding officer
Forwarded his case and he received a UD by reason of unfitness.
He was so discharged on 13 June 1945.
d. The Board found that available records indicate that his
conduct average was 3.8., high enough under normal circumstances
to warrant a better characterization of service. At that time,
discharge.
e.. 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 conditions other than honorable 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 abreratt .
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
It is clear that reference (b) does not mandate a discharge under
other than honorable conditions, but only authorizes such a
characterization if an aggravating factor is found to exist. The
Board concludes that based upon his overall record of service,
the uncertainty of an aggravating factor, and current Department
of the Navy policy as established in reference (b) and its
radical departure from the policy which was in effect on
13 June 1945, 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 with the absence
of a complete record and uncertainty of an aggravating factor ATL
this case, a general discharge is warranted.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that
he was issued a general discharge on 13 June 1945 vice the UD
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 June 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 deliberations, 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 Regulation, 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.
\g Yuan
W. DEAN FER
Executivevdirector
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