DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SJN
Docket No: 07853-12
18 October 2012
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 16 October 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
21 July 1993. on 10 February 1994, you received nonjudicial
punishment (NJP) for participating in approximately 20 acts of
sodomy with another Sailor on base and the Surrounding area. You
received a reduction in rate, a forfeiture of pay, restriction,
and extra duty. Subsequently, administrative discharge action
Was initiated by reason of homosexuality as evidenced by your own
admission. You waived your rights to consult counsel, submit a
statement or have your case heard by an administrative discharge
board (ADB). Your commanding officer forwarded his
recommendation to separate you by reason of homosexuality with an
other than honorable (OTH) discharge. On 3 March 1994, the
separation authority concurred and directed that you be separated
with an OTH discharge due to homosexuality. You were so
discharged on 17 March 1994.
The Board, in its review of your application, 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 NUP for engaging 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 numerous occasions on base, 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
and misconduct. 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,
Raritan ong ret Spe
ROBERT D ALMAN
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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