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

		CRS
										Docket No: 7995-06 
										13 December 2007

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 12 December 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. In addition, the Board considered the advisory opinion furnished by the Navy Personnel Command dated 22 November 2006, a copy of which is attached.

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. In this connection the Board substantially concurred with the comments contained in the advisory opinion. 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.

W. DEAN PFEIFFER
 Executive Director

Enclosure

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
                                       			MILLINGTON TN 38055.0000

				5812
											PERS-4832B
											 22 Nov 2006

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)
Via:	PERS/BCNR Coordinator (PERS-31C)
	
	Subj:   PETITION ICO

Encl:	(1) BCNR File 07995—06
(2) Petitioner’s Microfiche Service Record

1.	The petition and naval records of subject petitioner have been reviewed relative to his unspecific request for correction of the record regarding his discharge.

2.	The review reveals that the petitioner argues most eloquently that his separation was in error since there was confusion over what constituted aggravating circumstances in a homosexuality case. The petitioner and another sailor were caught by base police committing a homosexual act in the base theater head. The definitions of homosexual acts under aggravating circumstances have been in place since the fall of 1982. “In another location subject to naval control, under aggravating circumstances...,” has always meant any area on board any naval base, station, facility, installation, etc., subject to military control. That means the barracks, the exchange parking lot, base housing, or the head at the base theater. An open stall in the base theater head is in public view to whoever walks in. Dependent children go to see movies at the base theater and use the head facilities. Open homosexual activity occurring in a public head is definitely going against good order, discipline, and common decency. The issue of the civilian conviction based on a plea bargain became a non-issue since the administrative board found no misconduct for that reason. At that time, a civilian conviction was not binding for a finding of misconduct as ft has been for at leas€ eight years. Therefore, favorable action on this petition is not recommended.

Technical Advisor to the
Head, Enlisted Performance and
Separations Section (PERS-4832)