DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20376-5100
SJN
Docket No: 06978-11
17 August 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj:
Ret: (a) 10 U.S.C. 1552
(b) SECNAVINST 1910.4B
Enel: (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 9 September 1944 be upgraded.
2. The Board, consisting of Mr. Hedrick, Mr. Clemmons,. and
Mr. Midboe, reviewed Petitioner's allegations of error and
injustice on 16 August 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
toe 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 in a timely manner,
it is in the interest of justice to waive the statue of
limitations and review the application on its merits.
ec. Petitioner enlisted in the Navy and began a period of
active duty on 5 February 1943. He served without incident until
22 August 1944, when he submitted a statement admitting to
participating in homosexual acts before and after joining the
service. A medical evaluation determined that he voluntarily
participated passively in repeated homosexual acts. The report
Stated, in part, that his homosexual experiences began at an
early age. He had little interest in boys and their activities,
preferring the companionship of girls because he “liked the
things they did”. Schoolmates referred to him as “a sissy”. He
took an interest in female attire, household furnishings, and
shopping. Additionally, he had his first experience with
homosexuality at the age of 19, which continued. He Maintained a
philosophic attitude about his condition and adjusted to the
prospect of life-long homosexuality. It was recommended that he
be discharged from the naval service. Subsequently, he was
administratively processed for separation by reason of unfitness
due to participation in homosexual acts. His commanding officer
forwarded his case and the separation authority directed a UD by
reason of unfitness due to homosexual acts. He was so discharged
on 9 September 1944.
d. The Board found that available records indicate that his
conduct average was 4.0., more than high enough under normal
circumstances to warrant an honorable characterization of
service. At that time, an average of 3.25 in conduct was
required for an honorable 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 aircraft.
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 and
current Department of the Navy policy as established in reference
(b) and its radical departure from the policy which was in effect
on 9 September 1944, 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 an honorable
discharge is warranted in this case given his exemplary period of
active duty.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he was issued an honorable discharge on 9 September 1944 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 27 June 2011.
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.
Bann) Anogh
ROBERT D. ZSALMAN BRIAN J. VGEORGE
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.
\0 Seem Fdan
W. DEAN PRELHYE
Executive di
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