DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 1889-12
7 December 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 5 December 2012. 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 July 1981 at age 18. On 30 June 1983, you were the subject
of a mental health evaluation after admitting to your department
head that you were a homosexual. You stated in part that you
engaged in oral sex onboard the USS BIDDLE in the helicopter
control tower compartment with another Sailor. You were
notified of pending administrative discharge processing with an
other than honorable (OTH) discharge due to homosexuality. You
waived all of your procedural rights, including your right to an
administrative discharge board (ADB). On 2 September 1983, you
received the OTH discharge for homosexual acts.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth and
overall record of service. Nevertheless, the Board found that
these factors were not sufficient to warrant changing your
characterization of service given your sworn statement that you
participated in a homosexual act aboard a naval vessel in a work
space. The Board noted that you waived the right to an ADB,
your best chance for retention or a better characterization of
service. 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 engaging in the act onboard a naval vessel.
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 records.
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,
Executive Director
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