DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
7015. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SIN
Docket No: 04144-12
13 March 2013
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the 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 12 March 2013. 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 Marine Corps and began a period of active
duty on 15 February 1966: During the period from 21 August 1967
to 27 February 1968, you received five nonjudicial punishments
(NJP) which consisted of three days of unauthorized absence (UA),
failing to go to your appointed place of duty, unlawful
possession of an identification and liberty card, and two
instances of disobedience. On 12 March 1968, you were convicted
by summary court-martial (SCM) of four days of UA. On 23 July
1968, you signed a sworn statement admitting to participating in
a homosexual act with another inmate while confined in the brig.
As a result, an investigation into the incident was conducted by
the Office of Naval Intelligence (ONI). On 27 September 1968,
you were convicted by special court-martial (SPCM) of 51 days of
UA. You were sentenced to a reduction in paygrade, a forfeiture
of pay, and restriction. As a result of the ONI investigation,
on 25 September 1968, administrative discharge action was
initiated and it was recommended that you receive an undesirable
discharge by reason of unfitness due to engaging in a homosexual
act on 15 July 1968. You were notified of pending administrative
separation action. You consulted with counsel and waived your
right to submit a statement or have your case heard by an
administrative discharge board (ADB). Your case was forwarded
recommending that you receive an undesirable discharge due to
unfitness. The separation authority concurred and directed an
other than honorable (OTH) discharge due to wnfitness. You were
so discharged on 1 November 1968.
The Board, in its review of your entire record, carefully weighed
all potentially mitigating factors, such as your youth, record of
service, and desire to change your characterization of service.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge given
your five NJP’s, SCM and SPCM convictions, and the reason you
were discharged. In this regard, the Board noted that you
admitted to participating in a homosexual act in a location
subject to military control under aggravating circumstances that
have an adverse impact comparable to the impact of such activity
aboard a vessel or aircraft. In your case, that activity
occurred in a public place, the dormitory of the brig among other
confinees that were sleeping, which is sufficient even under
current standards to warrant an OTH discharge. 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 such as misconduct. In your case, the Board
found an aggravating factor. The Board concluded your discharge
was proper as issued and no change is warranted. Accordingly,
your application has been denied. The names and votes of the
members of the panel will be furnished upon request.
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,
Naa
W. DEAN’ P
| Executive Bir or
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