DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

TJR
Docket No: 5654-03
18 May 2004

MR XXXXX 

Dear Mr. XXXX:

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.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 May 2004. 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.

Lou enlisted in he Navy on 14 August 1962 at age 18. A year later, on 17 August 1963, you were convicted by civil authorities of resisting arrest, disorderly conduct, and assault on a police officer. You were sentenced to confinement for 12 days.

On 22 April 1964 you received nonjudicial punishment (NJP) for absence from your appointed place of duty and were awarded restriction for 60 days and extra duty for 45 days. Two months later, on 24 June 1964, you submitted a written statement in which you admitted to participating in an homosexual act. On 23 October 1964 you were convicted by summary court-martial (SCM) of wrongful possession of an identification card and sentenced to an $82 forfeiture of pay and an unspecified periods of hard labor and restriction. On 3 February 1965 you received NJP for disrespect and were awarded confinement on bread and water for three days. Following a psychiatric evaluation on 8 February 1965, you were recommended for an administrative separation by reason of unfitness due to passive homosexual involvement. On 18 February 1965 you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for participating in a homosexual act. 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. Subsequently, your commanding officer recommended an undesirable discharge by reason of unfitness due to homosexual involvement. On 24 February 1965 you received your third NJP for absence from your appointed place of duty and were awarded confinement on bread and water for three days.

On 3 March 1965 the discharge authority granted your request for discharge for the good of the service, but directed separation under honorable conditions. 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 March 1965 you received a general discharge by reason of unfitness.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and immaturity and your contention that you received a general discharge because you were thought to be homosexual, but in fact, are not. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge given your repetitive misconduct in both the civilian and military communities. Further, the Board noted that you admitted to participating in a homosexual act and requested discharge in lieu of trial. The Board thus concluded that you received the benefit of your bargain with the Navy when you were discharged at your request rather than being tried by court-martial, which could have resulted in a lengthy period of confinement as well as a punitive discharge. Additionally, most Sailors separated for the good of the service received undesirable discharges. Therefore you were fortunate to receive a general discharge. Accordingly your application has been denied.

The names and votes of the members of the panel will be furnished upon request.

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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. 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,

            W. DEAN PFEIFFER
Executive Director

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