Docket No: 1229-20
Ref: Signature Date              
            

 
Dear 
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 11 December 2020.  The names and votes of the panel members will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of the Board.  Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).   
 
You enlisted in the Navy and began a period of active duty on 24 January 1957.  On 2 August 1958, you began a period of unauthorized absence (UA) for sixteen days, in which you missed the sailing of the vessel.  On 26 August 1958, you were convicted at a special court-martial (SPCM) for missing movement of the .  On 16 December 1958, you signed a sworn statement admitting your wrongful touching of another service member without his consent.  The misconduct occurred in a berthing area aboard a naval vessel.  On the same date, you signed a statement accepting an undesirable discharge for the good of the service and to escape trial by general court-martial.  On 7 January 1959, the discharge authority directed your discharge with an under other than honorable conditions characterization of service by reason of unfitness.  You were discharged on 23 January 1959. 
 
Your application was reviewed under the Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of military records following repeal of 10 U.S.C. §654).  The Board can grant a request to upgrade a discharge that was based on homosexuality when two conditions are met: (1) the original discharge was based solely on “Don’t Ask Don’t Tell” (DADT) or similar policy, and (2) there were no aggravating factors such as misconduct.  Additionally, the Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions that you were accused of homosexual behavior, that you were young and did not defend yourself against the accusation as you should have, and that you did not receive due process.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board noted that you were not discharged by reason of homosexuality and determined that your misconduct, as evidenced by your SPCM and admissions, outweighed these mitigating factors.  Consequently, the Board concluded your characterization of service was proper as issued and no change is warranted.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or 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,