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. Pursuant to the provisions of reference (a), Petitioner, a .
former enlisted member of the United States Navy, filed enclosure
(1) with this Board requesting that his discharge be upgraded.
2. The Board, consisting of Mr. Garst, Mr. Sproul, and Ms.
.Zivnuska, reviewed Petitioner's allegations of error and
injustice on 26 July 2011 and, pursuant to its regulations,
@etermined 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 walve the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Navy on 25 April 1951 at age
18. During his enlistment, he was not the subject of any
disciplinary action.
d. On 5 June 1951 Petitioner admitted to participating in
homosexual acts prior to enlisting. He further stated that he
did not participate in any such acts while serving in the Navy,
but possessed desires to have sexual relations with men.
e. As a result of the foregoing, in July 1951, Petitioner was
administratively processed for separation by reason of unfitness
due to homosexuality. On 3 August 1951 he was issued an
undesirable discharge by reason of unfitness due to being a Class
III homosexual. At the time of his separation, his conduct and
trait marks were high enough, under normal circumstances, to
warrant a fully honorable discharge.
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 he
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 uniess 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. .
g. Petitioner's military records fail to disclose the
presence of any of the aggravating circumstances which would
warrant the issuance of an other than honorable or undesirable
discharge under the provisions of reference {b).
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
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 was in effect on 3
August 1951, the date of his discharge, the Board concludes that
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 an honorable discharge is warranted in this case given his
satisfactory conduct and trait averages.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that
he was issued an honorable discharge on 3 August 1951 vice the
undesirable 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 18 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 deliberations, and that the
foregoing is a true and complete record of the Board's
proceedings in the above entitled matter.
ROBERT DD. ZSALMAN BRIAN -\ 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.
W. DEAN 2 F
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