DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O-5100

TRG
	Docket No: 419-06
	9	May	2007

Dear

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 1 May 2007. 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

You enlisted in the Navy on 26 February 1985 at age 17. At that time you answered “no” to the question concerning participation in homosexual acts. You successfully completed recruit training and, on 14 June 1985, reported for advanced training.

On 2 August 1986 you made a statement to an investigator that you were homosexual and had engaged in homosexual acts prior to and during naval service. You also stated “I intend to continue my present lifestyle.”

On 6 August 1985, you received nonjudicial punishment for failure to go to your appointed place of duty on two occasions totaling about nine hours. The punishment imposed include restriction, extra duty and a forfeiture of pay.

On 9 September 1985, you were notified of separation procession by reason of fraudulent enlistment due to your failure to disclose persevere involvement in homosexual activity. At that time, you elected to waive your procedural rights. On 10 September 1985, your commanding officer recommended separation with the type of discharge warranted by your service record. After review, the separation authority directed a general discharge by reason of fraudulent enlistment and the assignment of an RE-4 reenlistment code. In your separation evaluation, you were assigned adverse marks of 2.8 in the categories of military bearing and personal behavior. You were issued a general discharge on 4 October 1985. At that time, you acknowledged that you were not recommended for reenlistment and would be assigned an RE-4 reenlistment code.

Character of service is based, in part, on conduct and overall trait averages, computed from marks assigned on a periodic basis. An average mark of 3.0 was required for a fully honorable characterization of service. As noted above, your only mark in personal behavior was 2.8.

In its review of your application the Board carefully weighed all potentially mitigating factors, such as your youth, initial period of good service and claim of a good post service adjustment. The Board also considered the statement you submitted to the effect that you did not enter the Navy with knowing homosexual tendencies and that you did not act upon those tendencies while in the Navy. You claim that you only reported your tendencies in order to get help and to prevent a dishonorable discharge. The Board found that these factors and contentions were not sufficient to warrant recharacterization of your discharge. As indicated, you told the investigator that you had engaged in homosexual acts prior to and during naval service, which is contrary to your current statement that you only had homosexual tendencies. It is well settled in the law that an individual who commits a fraud in order to gain discharge should not benefit from that fraud when it is discovered. Therefore, the Board concluded that whichever version is correct that you were properly discharged by reason of fraudulent enlistment. The Board further concluded that a record which included nonjudicial punishment, an adverse performance evaluation which resulted in your failure to attain the required average mark in conduct, and a discharge for fraudulent enlistment was sufficient to support the issuance of a general discharge.

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,

						W. DEAN PFIEFFER
						Executive Director

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