DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 324-12
31 October 2012
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 24 October 2012. The names and votes of the
members of the panel will be furnished upon request. Your
allegations of error and injustice were reviewed in accordance
with administrative regulations and procedures applicable to the
proceedings of this Board. Documentary material considered by
the Board consisted of your application, together with all
material submitted in support thereof, your naval record, and
applicable statutes, regulations, and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Navy and began a period of active duty on
31 August 1950 at age 21. You were the subject of an
investigation by your command concerning homosexual misconduct.
On 27 July 1953, you submitted a written statement regarding
participation in a homosexual act with a Sailor on board a Navy
installation. On 30 July 1953, you made a written request for
an undesirable discharge (UD) to avoid trial by court-martial
for the foregoing misconduct. Prior to submitting this request
you conferred with a qualified military lawyer at which time you
were advised of your rights and warned of the probable adverse
consequences of accepting such a discharge. Your request was
granted and the commanding officer directed your UD. As a
result of this action, you were spared the stigma of a court-
martial conviction and the potential penalties of a punitive
discharge and confinement at hard labor. On 30 October 1953,
you were separated with a UD due to unfitness.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and overall record of service. Nevertheless, the
Board concluded these factors were not sufficient to warrant
recharacterization of your discharge given your sworn statement
that you participated in a homosexual act with a Sailor ona
Navy installation which is sufficient, even under current
standards, to warrant an other than honorable discharge.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon
request.
Please be advised that under 10 United States Code (U.S.C.) 654
(Repeal), the Board can grant a request to upgrade a discharge
based on homosexuality when two conditions are met: (1) the
original discharge was based solely on “don’t ask, don’t tell”
(DADT) or similar policy in place prior to enactment of DADT and
(2) there were no aggravating factors in the record, such as
misconduct. In your case, the Board found an aggravating
factor, namely your participation ina homosexual act aboard a
naval installation.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official récorde.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
eS
ROBERT D. ZSALMAN
Acting Executive Director
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Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge given your sworn statement that you engaged in homosexual acts on base that were witnessed by another service member. 654 (Repeal), the Board can grant a request to upgrade a discharge - based on homosexuality when two conditions are met: (1) the original discharge was based solely on DADT or similar policy in place prior to enactment of DADT and (2) there were no aggravating...
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