DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 4994-13
30 May 2014
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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 14 May 2014. 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
7 September 1976 at age 18. On 15 September 1977, you were
convicted in a Florida civil court of wrongful possession of
marijuana. You were sentenced to pay a fine and 30 days
unsupervised probation. In April 1978, you made a sworn
statement to the Naval Investigative Service, stating in part
that you participated in homosexual acts onboard Naval Air
Station Whiting Field. You were notified of pending
administrative discharge processing with an other than honorable
discharge due to misconduct. You signed a Memorandum of
Agreement with your commanding officer to waive an
administrative discharge board and to accept an administrative
discharge under honorable conditions. On 9 June 1978, you
received nonjudicial punishment (NUJP) for failure to obey a
lawful written regulation by possessing a pellet gun. On
S September 1978, you received the discharge with a general
characterization of service due to misconduct.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and overall record of service. Nevertheless, the
Board concluded these factors were not sufficient to warrant
¢hanging your characterization of service given the seriousness
,c£f your misconduct that resulted in a civil conviction, an NJP
and your sworn statement that you participated in homosexual
.acts under aggravating circumstances that had an adverse impact
on morale and discipline. The Board also believed that you were
fortunate to receive a general discharge since a discharge under
other than honorable conditions is often directed when a Sailor
is separated for misconduct. Accordingly, your application has
been denied. The names and votes of the members of the panel
will be furnished upon request.
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. In your case, the Board found an aggravating
factor, namely your homosexual acts in a location subject to
military control.
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,
SES A
% et
ROBERT D. ZSALMAN
Acting Executive Director
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