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. 1552
(b) SECNAVINST 19120.4B

Encl: (1) Case summary
(2) Subject's naval record

1. 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.

2. The Board, consisting of Messrs. Bougeois, McBride, and
Midboe, reviewed Petitioner's allegations of error and injustice
on 21 June 2011 and, pursuant to its regulations, a majority
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 ali
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
statute of limitations and review the application on its merits.

c. Petitioner enlisted in the Navy on 31 August 1961 at age
21. He served for nearly two years without disciplinary
incident, but on 10 June 1963, he received nonjudicial punishment
(NJP) for sleeping on watch. He also received NUP on 7 October
1963 for not having made his bunk.

d. On 20 September 1963 Petitioner underwent a medical
evaluation. During this evaluation, he was interviewed regarding
his suspected participation in homosexual activities. As a
result, he admitted to participating in two passive homosexual
acts, both while intoxicated. The medical evaluator also noted

that he showed his concern regarding his alcohol abuse. He was
subsequently diagnosed with an inadequate personality disorder
and overt homosexuality.

e. Subsequently, Petitioner was administratively processed
for separation by reason of unfitness based on his misconduct, as
evidenced by the two NJPs and his homosexual behavior. Although
he waived his procedural rights to consult with legal counsel and
to present his case to an administrative discharge board, on 11
October 1963, an enlisted performance evaluation board
recommended an undesirable discharge by reason of unfitness. His
commanding officer also recommended he be issued an undesirable
discharge by reason of unfitness based on his misconduct and the
findings of the medical evaluation. On 14 October 1963 the
discharge authority directed an undesirable discharge by reason
of unfitness, and on 25 October 1963, Petitioner was so
discharged.

f. 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 aircraft.
h. In accordance with the foregoing policy, the record fails
to reflect the presence of any aggravating factors.
MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, a
majority of the Board, consisting of Messrs. Bourgeois and
Midboe, concludes that Petitioner's request warrants favorable

action.

In reaching its conclusion, the majority initially notes
Petitioner's overall period of satisfactory service. The
majority also notes his misconduct that resulted in two NJPs, but
deems it to be minor in nature. The majority further notes that
his participation in homosexual acts only occurred while he was
under the influence of alcohol and that his record did not
reflect any aggravating factors as set forth in current Navy
policies.

Based on the foregoing, and since Petitioner has suffered the
consequences of an undesirable discharge for more than 48 years,
the majority concludes that no useful purpose is served by
continuing to characterize his service as having been under other
than honorable conditions, and relief in the form of a general
discharge is appropriate.

In view of the foregoing, the majority finds the existence of an
injustice warranting the following corrective action.

MAJORITY RECOMMENDATION :

a. That Petitioner's naval record be corrected to show that
he was issued a general discharge on 25 October 1963 vice the
undesirable discharge actually issued on that same day.

b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.

c. That, wpon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 10 September 2010.

MINORITY CONCLUSION:

Mn. McBride disagrees with the majority and concludes that
Petitioner's request does not warrant favorable action.

The minority member notes that Petitioner’s misconduct, although
minor in nature, and his repeated participation in homosexual
acts, although not aggravating under current standards, are not
indicative of honorable service or him having served under
honorable conditions. The minority member believes that his
misconduct and unfitness supported an undesirable discharge, and
since it was proper at the time, he should not be permitted to
change it now.

In view of the foregoing, the minority finds no injustice
warranting corrective action.

MINORITY RECOMMENDATION :

 

a. That Petitioner's request be denied.

4, 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. The foregoing action of the Board is submitted for your review

and action.

W. DEAN PF

Whok— 7[20/
MAJORITY REPORT APPROVED:

ROBERT L. WOODS

Assistant General Counsel —
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000