DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JDR
Docket No: 5982-14
6 July 2015
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
5 June 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, began a period of active duty on
17 December 1990, and served without disciplinary incident for
about four months. However, on 23 April 1991, you received
nonjudicial punishment (NJP) for failing to obey a lawful order.
On 18 September 1991, you were counseled and warned that further
misconduct could result in administrative separation action.
During the period from 18 May 1992 to 18 June 1992, you were in
an unauthorized absence (UA) status. On 19 June 1992, you were
evaluated and diagnosed with adjustment disorder with mixed
emotional features. During this evaluation, you reported that
you had a desire to have homosexual relationships.
Subsequently, administrative discharge action was initiated by
reason of misconduct due to the commission of serious offenses
and by reason of homosexuality. At that time you elected to
waive your procedural rights. Your case was forwarded,
recommending discharge under other than honorable (OTH)
conditions by reason of misconduct due to the commission of
serious offenses and by reason of homosexuality. However, the
separation authority approved and directed an OTH discharge by
reason of misconduct due to the commission of a serious offense,
and on 9 October 1992, you were so discharged.
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 upgrade your discharge. It
also considered your assertions that you went UA after you were
threatened because of your homosexuality and that your sexual
preference is affecting your right to serve your country.
Nevertheless, the Board concluded these factors were not
sufficient to warrant recharacterization of your discharge,
given the seriousness of your misconduct which resulted in one
NIP, a counseling, and a 31 day period of UA. With regard to
your assertions, the Board considered whether being threatened
was a causative factor in the misconduct that resulted in your
discharge. After full and careful consideration of the matter,
the Board determined that there was insufficient evidence in the
record, and you provided none, to support a conclusion that a
causal relationship with your homosexuality and misconduct
existed. Specifically, the Board concluded that your misconduct
wag not a result of your homosexuality. Further, the Board
noted that you were not discharged due to homosexuality, but by
reason of misconduct due to the commission of a serious offense
and that RE-4 is an appropriate reentry code. Finally, the Board
noted that you waived your procedural rights which may have
resulted in a better characterization of service. 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 or other matter not previously considered by
the Board within one year from the date of the Board’s decision.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
ee 11S a
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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