DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECOR~JN
	2NAVYANNEX	Docket No: 04617-04
	WASHINGTON DC 20370-5100	9 August 2004

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 3 August 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 conserdation of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice 

You enlisted the Marine Corps on 5 July 1968 at age 17. On 17 July 1968 you received nonjudicial punishment (NJP) for disobedience and received correctional custody for seven days.

During the period 30 September to 5 October 1968, you were granted leave for the purpose of testifying in a civil court against a suspected pedophile. As a result, a command investigation was conducted and it was discovered that you fraudulently enlisted in the service by deliberately omitting or concealing facts regarding your participation in pre-service homosexual acts. On 16 October 1968, during the command investigation, you admitted that your first homosexual contact occurred in January of 1968, and stated that you did not disclose this homosexual act to the recruiter because you did not consider yourself a homosexual. Additionally, on 28 October 1968, during a physical examination, you admitted to repeated homosexual acts two years before enlistment.

Based on this investigation, administrative discharge action was initiated by reason of misconduct due to fraudulent enlistment, as evidenced by your deliberate concealment of pre-service homosexual acts. You then waived the rights to consult counsel, submit a statement or have your case heard by an administrative board.

On 7 November 1968 the commanding officer recommended an undesirable discharge due to fraudulent enlistment. On 21 November 1968 you received NJP for disobedience and sleeping
on watch. You received 14 days restriction and extra duties. On 6 December 1968 the discharge authority directed an undesirable discharge by reason of fraudulent enlistment and on 11 December 1968 you were so discharged. Subsequently, you petitioned the Naval Discharge Review Board (NDRB), and on 25 July 1980 the NDRB upgrade your discharge from undesirable to general under honorable conditions.

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth and immaturity along with your contentions that you are not or have never been a homosexual and you were discharged because you testified against a pedophile. However, the Board found that these factors were not sufficient to warrant recharacterization of your discharge given your two NJP’s in five months of service and your fraudulent enlistment. Additionally, the Board noted that you received one of your NJP’s after you were notified of your pending separation. Your contentions that you are not or have never been a homosexual and were discharged from the service because you testified against a pedophile in civil court, are unfounded. On the contrary, you were discharged from the service because, as a result of a command investigation, it was discovered that you had committed pre-service homosexual acts and concealed those acts during the recruiting process. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

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,