DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 $. COURTHOUSE ROAD, SUITE 1001
TAL
Docket No: 9107-13
22 October 2014
Dear CE:
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 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
6 September 1988. You served for more than six years without
disciplinary incident until 22 February 1995, when you were
convicted by a special court-martial (SPCM). Your offenses were
making a false official statement, making false claims against
the Government, and marriage or attempted marriage to a person
of the same biological sex.
Subsequently, you were notified of pending administrative
separation by reason of misconduct due to commission of a
serious offense, 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 other than honorable conditions by
reason of misconduct due to commission of a serious offense.
The discharge authority approved this recommendation and
directed separation under other than honorable conditions by
reason of misconduct, and on 19 May 1995 you were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your overall record of service, desire to upgrade your
‘discharge, and assertion that your characterization of service
was based on your sexual orientation. Nevertheless, the Board
concluded these factors were not sufficient to warrant relief in
your case because of the seriousness of your misconduct.
Further, you weré given an opportunity to defend your actions,
buy 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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