DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SION
Docket No: 04061-13
1 May 2014
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 30 April 2014. The names and votes of the members
of the panel will be furnished upon 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 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
25 April 1983. The Board found that on 28 March 1985, you were
convicted by special court-martial (SPCM) of attempted sodomy of
‘another servicemember, and sleeping on watch. You were sentenced
to a reduction in paygrade and a bad conduct discharge (BCD).
You received the BCD on 25 January 1988 after appellate review
was completed.
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
change pursuant to the “don’t ask, don’t” tell (DADT) Repeal Act
of 2011. Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge given
your SPCM conviction of attempted sodomy of another
servicemember, and sleeping on watch. In this regard, the Board
noted that you commited a homosexual act under aggravating
circumstances that have an adverse impact on morale and
discipline, which is sufficient even under current standards to
warrant a BCD. Further, you were not administratively separated
from the Navy based on homosexuality, but for misconduct. Please
be advised that even under 10 United States Code (U.S.C.) 654
(Repeal), the Board could only 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 an aggravating factor and that you committed misconduct due
to the attempted sodomy of another servicemember. The Board
concluded your BCD was proper as adjudged 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.
Consequentiy, 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,
Tc, Onto pemommm
ROBERT D™ ZSALMAN
Acting Executive Director
NAVY | BCNR | CY2012 | 03174 12
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