DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SJN
Docket No: 4317-14
22 April 20415
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.
Although your application was not filed ina 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
21 April 2015. 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.
fier 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
30 January 1959. On 1 March 1961, you submitted a sworn
statement admitting to participating in homosexual acts with two
servicemembers in the base Chapel and unused theater near the
Chapel. Subsequently, administrative discharge action was
initiated and it was recommended that you receive an undesirable
discharge by reason of unfitness as evidenced by your own
admission. After being afforded all of your procedural rights,
your case was forwarded to the separation authority, and you
received an other than honorable discharge 24 March 1961.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your record of service, and desire to have your characterization
of service change. Nevertheless, the Board concluded these
factors were not sufficient to warrant recharacterization of your
discharge given your sworn statement that you engaged in
homosexual acts. In this regard, the Board noted that you
admitted to participating in homosexual acts under aggravating
circumstances that have an adverse impact on morale and
discipline. In your case, you engaged in homosexual acts on base
with two servicemembers in a room of the Chaplains office, and in
an unoccupied theater near the Chapel, which is sufficient even
under current standards to warrant an OTH discharge. 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 such as misconduct. In your case,
the Board found aggravating factors. The Board concluded your
discharge was proper as issued and no change is warranted.
Accordingly, your application has been denied.
It is regrettable 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 record, the burden is on
the applicant to demonstrate the existence of material error or
injustice.
Sincerely,
R RT J. O'NEILL
Executive Director
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