DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 3294-12
25 February 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD or ea
Seg
Ref : (a) 10 U.S.C. 1552
b) 10 U.S.C. 654 (Repeal)
Encl: (1) DD Form 149 dtd 17 Feb 2012 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 United States Navy Reserve filed
enclosure (1) with this Board requesting, in effect, that his
undesirable discharge (UD) be upgraded to honorable. He was
discharged on 5 December 1944. By implication, he further
requested that his reason for separation, unfitness
(homosexuality), be changed.
2. The Board, consisting of Mr. Pfeiffer, Mr. Zsalman, and
Mr. Exnicios, reviewed Petitioner's allegations of error and
injustice on 21 February 2013 and, pursuant to its regulations,
determined that the limited 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 waive the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Navy Reserve and began a period
of active duty on 11 May 1943 at age 20. He received
nonjudicial punishment (NJP) on one occasion for failure to obey
a lawful order. The sentence imposed was reduction in rate,
which was suspended for six months.
d. On 23 October 1944, Petitioner, while the subject of a
psychiatric evaluation at his own request, made a voluntary
statement, stating in part that, he allowed a white civilian man
to perform fellatio on him about six times and felt guilty. On
4 November 1944, he submitted a written statement stating in
part that, he had become very nervous, despondent, and
physically disturbed. He further stated he felt it would be
very difficult to remain in the service.
e. On 7 November 1944, he was notified of pending
administrative discharge processing with a UD due to unfitness
(homosexuality). The discharge authority approved and directed
an UD discharge due to unfitness (homosexuality). On 5 December
1944 he was so separated. At the time of his separation, his
conduct mark average was 3.25, high enough to warrant an
honorable characterization of service.
f. Reference (b) sets forth the Department of the Navy's
current policies, standards, and procedures for correction of
military records following the “don’t ask, don’t tell” (DADT)
repeal of 10 U.S.C. 654. It provides service Discharge Review
Boards with the authority to grant requests to change the
narrative reason for discharge to “Secretarial Authority”, when
the original discharge was based solely on DADT or a similar
policy in place prior to enactment of it and there are no
aggravating factors in the record, such as misconduct.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action based upon his overall record of service, despite his
NJP, and current Department of the Navy policy as established in
reference (b) and its radical departure from the policy which
was in effect on 5 December 1944, the date of his discharge.
The Board believes 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
2
relief in the form of recharacterization is appropriate. The
Board further concludes that an honorable discharge is warranted
in this case given his conduct mark average. In view of the
above, the Board directs the following relief.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
he was issued an honorable discharge on 5 December 1944 vice the
UD discharge actually issued on that date and that the narrative
reason for separation was “Secretarial Authority” vice “APELELSe
C-10311, BuPers Manual-253” BuPers Letter Pers 651-dmk/WMM836 44
40 of 16 November 1944. Petitioner’s Certificate of Discharge
or Release from Active Duty (DD Form 214) does not contain an
assigned Separation Program Designator (SPD) code or reentry
code.
b. That, upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board
on 22 March 2012.
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 deliberation, 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. 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 Regulations, 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.
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