DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
7018S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SJN
Docket No: 04900-12
27 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 26 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 Navy and began a period of active duty on
3 September 1958. The Board found that on 19 May 1959, you
submitted a sworn statement to the Office of Naval Intelligence
(ONT) admitting to participating in homosexual acts. You further
stated that some of these incidents occurred in a pool room, an
old recreation hall, barracks, and in an elevator, all of which
were on base. There is also evidence in your record that you
made repeated unwanted homosexual solicitations of another
Sailor. Subsequently, administrative discharge action was
initiated and it was recommended that you receive an undesirable
discharge by reason of unfitness as evidenced by your own
admission. After being afforded all of your procedural rights,
your case was forwarded and you received an undesirable discharge
on 15 July 1959.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors, such as your youth, record of
service, and desire to have your characterization of service
changed pursuant to the Don’t ask, Don’t tell (DADT) Repeal Act
of 2010. 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.
In this regard, the Board noted that you admitted to
participating in homosexual acts under aggravating circumstances
that have an adverse impact on morale and discipline. In your
case, you engaged in homosexual acts on base in areas subject to
government control, which is sufficient even under current
standards to warrant an other than honorable 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 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 aggravating factors. 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,
ROBERT D. SALMAN
Acting Executive Director
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