DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TLG
Docket No: 5905-14
28 May 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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 22 May 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
19 July 1985. The Board found that on 14 April 1988, you
received nonjudicial punishments (NJP) for three instances of
sodomy, and committing an indecent act while onboard a Navy
vessel. Additionally, you made a statement that you were a
homosexual and participated in homosexual acts onboard ship.
Subsequently, administrative discharge action was initiated by
reason of homosexual admission. After being afforded all of
your procedural rights, your case was forwarded to the
separation authority recommending you receive an other than
honorable (OTH) discharge. The separation authority concurred
and directed that you be separated with an OTH discharge due to
homosexuality. You were so discharged on 13 May 1988.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your desire to upgrade your characterization of service change
pursuant to the Don’t ask, Don’t tell Repeal Act of 2010.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge given
your admission that you engaged in homosexual acts onboard a
Naval vessel. 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
onboard a Naval vessel, 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 an aggravating factor. The Board concluded your discharge
was proper as issued and no change is warranted. Accordingly,
your application has been denied.
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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