DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 100%
TAL
Docket No: 3295-14
& Nevember 201
Dear (A
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
29 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
7 February 1956. You served for a year and three months without
disciplinary incident, but on 20 May 1957, you received
nonjudicial punishment for failure to obey a lawful order. On
30 May 1958, you made a voluntary statement to a special agent
with the Office of Naval Investigations (ONI), stating that you
participated in homosexual acts with another sailor on board the
USS Saint Paul.
Subsequently, you made a written request for an other than
honorable (OTH) discharge to avoid trial by court-martial for
the foregoing misconduct. Prior to submitting this request you
conferred with a qualified military lawyer at which time you
were advised of your rights and warned of the probable adverse
consequences of accepting such a discharge. Your request was
granted and the commanding officer directed your OTH discharge.
As a result of this action, you were spared the stigma of a
court-martial. conviction and the potential penalties of a
‘punitive discharge and confinement at hard labor. on 15 July
1958, you were separated with an OTH due to unfitness.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your post service conduct and your assertion that the
investigation was carried out in an unjust manner.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge given
the seriousness of your misconduct and request for discharge.
The Board believed that considerable clemency was extended to
you when your request for discharge to avoid trial by court-
martial was approved. The Board conciuded that you received the
benefit of your bargain with the Navy when your request for.
discharge was granted and should not be permitted to change it
now. 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. In your case, the Board found an aggravating
factor, namely your participation in a homosexual act aboard a
naval vessel.
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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