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

					 CRS
Docket No: 8251-06
28 June 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 13 June 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.

The Board found that you enlisted in the Marine Corps on 5 May 1966. On 1 August 1966 you received nonjudicial punishment for an unauthorized absence of two days. A psychiatric evaluation conducted on 5 August 1966 diagnosed you with a personality disorder. A special court-martial convened on 8 September 1966 and found you guilty of intentionally injuring yourself by taking an overdose of sleeping pills, nerve pills, and aspirin. The court sentenced you to confinement at hard labor for six months and forfeitures of $64 per month for six months.

On 19 September 1966 you made a sworn statement that you were a homosexual prior to your enlistment and had engaged in numerous homosexual acts. You also stated that during your period of active duty, you committed only one homosexual act which was with a civilian.

On 1 December 1966 your commanding officer recommended that you be separated with an undesirable discharge by reason of unfitness due to sodomy. When informed of the recommendation, you elected to waive the right to present your case to an administrative

discharge board. Subsequently, you received a second nonjudicial punishment for an unauthorized absence of 53 days. After review by the discharge authority, the recommendation for separation was approved and you were discharged on 28 February 1967 with an undesirable discharge.

In its review of your application the Board carefully weighed all potentially mitigating factors, such as your contention that you were abused by a staff sergeant and that you were “railroaded out” of the Marine Corps. The Board concluded that those factors were insufficient for recharacterization of your discharge, as they were unsubstantiated. The Board concluded that an undesirable discharge was appropriate, given your three disciplinary actions and unauthorized absences totaling almost two months. The Board also concluded that your assertion that you lied about being a homosexual in order to be discharged does not provide a legitimate basis for granting your request. The law is very clear that an individual who procures a discharge by fraud should not benefit from the fraud when it is discovered. 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,