DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
7O1i S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SIN
Docket No: 576-14
24 February 2015
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 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
3 February 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.
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
13 March 1962. The Board found that you received five
nonjudicial punishment (NJP’s), were convicted by two summary
court-martial’s (SCM'S), and two special court-martial’s (SPCMs) .
On 4 March 1965, you submitted a sworn statement admitting to
participating in homosexual acts for money with civilians and
while in the brig with another servicemember. 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 undesirable
discharge on 26 May 1965.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your record of service, post service accomplishments and medical
issues, 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 record of five NJP’s, two SCM’s, two SPCM convictions, and
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 a homosexual acts for financial gain and while in the
brig on base with another servicemember, 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 misconduct and 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.
Singeyely,
ROBERT J. O'NEILL
Fxecutive Director
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