DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
701 5. COURTHOUSE ROAD, SUITE {001
ARLINGTON, VA 22204-2490

SUN
Docket No: 02430-13
27 February 2014

‘From: Chairman, Board for Correction of Naval Records

To: Secretary of the Navy

Ref: (a) 10 U.S.C. 1552
(b) 10 U.S.C. 654 (Repeal)

Encl: (1} DD Form 149 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 Navy, filed enclosure (1) with this

Board requesting that his other than honorable (OTH)
characterization of his service be changed per reference (b).
He also impliedly requested that his narrative reason for —
separation “fraudulent enlistment” be changed.

2. The Board, consisting of Ms. Lapinski, Ms. Wilcher, and

Mr. Hedrick, reviewed Petitioner's allegations of error and
injustice on 25 February 2014, pursuant to its regulations,
determined that the 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 enclosure (1) was not filed in a timely manner,
it is in the interest of justice. to waive the statute of
limitations and review the application on its merits.

_¢. Petitioner enlisted in the Navy and began a period of
active duty on 7, November 1967. On 14 July 1968, a medical entry
States he was admitted for attempted suicide after ingesting
approximately 30 Excedrin tablets. At that time, he stated, in
ee a ee eee ee 7 a

part, that he felt dissatisfied and disliked the Navy. He was

worried about his parents and wanted to return home to take care

of their needs. Additionally, he voluntarily stated that he was
bisexual with homosexual tendencies, smoked marijuana, and was
involved in homosexual activities prior to entering the service.
It was further determined that he failed to disclose this
information during his recruiting process. As a result of his
failure to disclose this information, his commanding officer
initiated administrative discharge action by reason of misconduct
due to fraudulent entry, as evidenced by his concealment of pre-
service homosexuality and wrongful drug use. After being
afforded all of his procedural rights, he elected to have his
case heard before an administrative discharge board (ADB). On
9 September 1968, the ADB recommended separation with an OTH
discharge by reason of misconduct due to fraudulent enlistment.
On 21 November 1968, his commanding officer (CO) concurred with
the ADB’s findings and forwarded his recommendation that he be
discharged. The CO stated, in part, that he had perpetrated a
fraudulent enlistment by deliberately concealing his sexuality
and wrongful. drug use on his Fraudulent Enlistment Warning form

(NAVPERS 1130/2), which, except for such concealment, would have

resulted in his rejection to serve. On 4 December 1968, the
separation authority directed an OTH discharge by reason of
misconduct due to fraudulent enlistment. He was so discharged on
18 December 1968. ,

d.. Characterization of service is based in part on conduct
marks assigned on a periodic basis. His conduct average was 3.2.
At the time of his service, a conduct average of 3.0 was required
for a fully honorable characterization of service.

e. In his application, Petitioner states that since the
enactment of reference (b), homosexual conduct is no longer
considered a relevant factor for entry in to the armed forces.

f. 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.

CONCLUSION: .
Upon review and consideration of all the evidence of, record, the

Board concludes that Petitioner's request warrants favorable
action. . .
In this regard, the Board notes Petitioner's youth, time in
service, and after careful and conscientious consideration of his
record, concludes that even though the OTH discharge was proper
as issued based on his failure to conceal his preservice
homosexual conduct and wrongful drug use, he most likely would
have ultimately been administratively separated due to his
attempted suicide by ingesting approximately 30 Excedrin tablets
and diagnosed medical issues. At the time of his discharge, his
overall trait average was high enough for an honorable
characterization of service. In view of the foregoing, the Board

recommends the following corrective action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that
the narrative reason for separation was “secretarial authority”
vice “fraudulent enlistment”, and that his characterization of
service is honorable vice the OTH discharge actually issued
on 18 December 1968. ,

-b. That a copy of this report of proceedings be filed in
Petitioner’s naval record,

¢c. That upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received on.
26 February 2013.

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 deliberations, and that the
foregoing is a true and complete record of the Board’s
proceedings in the above entitled matter.

Orie, Droogn

- ROBERT D. ZSALMAN BRIAN J. GEORGE
_ Recorder Acting Recorder

5. Pursuant to the delegation ef authority set out in Section

-6(e) of the revised. Procedures of the Board for Correction of

Naval. Records (32 Code'of Federal Regulation; 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.

ss ROBERT D. ZSALMAN ©
Acting Executive Director

 

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