DEPARTMENT OF THE NAVY
_
BOARD FOR CORRECTION OF NAVAL PEsSORDS
7Oo1 =. COURTHOUSE ROAD, SUITE 1O07
ARLINGTON, VA 22204-2490
TAL
Docket No: 2826-13
24 October 2014
Dear
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, United
States Code, section 1552.
Although your application was not filed in a timely manner, the
Board found it in the interest of justice to waive the statute of
limitations and consider your application on its merits. A
three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 22
October 2014. The names and votes of the members of the panel
will be furnished upon your request. 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
“hereof, your naval record, and applicable statutes, regulations,
and policies.
ff
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You reenlisted in the Navy on 20 September 1976 after more than
four years of prior honorable service. You served for two years
without disciplinary incident, but during the period from
8 September 1980 to 5 February 1981, you received noniudicial
punishment (NIP) on one occasion and were convicted by court-
Martial. Your offenses were failure to go te your appointed
piace of duty and four instances of unauthorized absence (UA)
from your unit for 4 period totaling 72 days. On 15 September
1981, you made a voluntary statement to the Naval Investigative
Service (NIS) admitting your participation in homosexual acts
with members of the Navy in the barracks while stationed at Diego
Garcia.
Subsequently, you were notified of pending administrative
separation due to homosexuality at which time you waived your
procedural rights to consult with legal counsel and to present
your case to an administrative discharge board (ADB). Your
commanding officer recommended discharge under honorable
conditions by reason of homosexuality. The discharge authority
approved this recommendation and directed separation under
honorable conditions by reason of homosexuality and on 11 January
1982 you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your desire to upgrade your discharge and assertion of being
falsely accused of participating in homosexual acts.
Nevertheless, the Board found that these factors were not
sufficient to warrant relief in your case because of the
seriousness of your misconduct and your sworn statement that you
participated in homosexual acts with members of the Navy in the
barracks while stationed at Diego Garcia. Further, you were
given an opportunity to defend your actions, but waived your
procedural rights. Finally, there is no evidence in the record,
and you provided none, to support your assertion. Accordingly,
your application has been denied.
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 in the record, such as
misconduct.
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 within one year from the date of the Board’s decision.
New evidence is evidence not previously considered by the Board
prior to making its decision in your case. 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 J. O'NEILL
Executive Director
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