DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4498-20 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NAVAL RECORD OF FORMER XXX-XX USN Ref: (a) 10 U.S.C. 1552 (b) 10 U.S.C. 654 (Repealed) (c) USD Memo, subj: “Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code,” 20 September 2011 Encl: (1) DD Form 149 with attachments (2) NJP dtd 18 Dec 79 (3) Report of Offense dtd 28 May 80 (4) NJP dtd 30 May 80 (5) Clinical Record Consultation Sheet dtd 3 Jun 80 (6) DD Form 214 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting, in effect, that his characterization of service be upgraded to honorable. Upon review of enclosure (6), the Board determined that Petitioner’s service is already characterized as honorable. Accordingly, the Board considered Petitioner’s application in light of reference (c). 2. The Board reviewed Petitioner's allegations of error and injustice on 28 October 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds, as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active duty on 19 October 1977. d. On 18 December 1979, Petitioner received non-judicial punishment (NJP) for missing movement in violation of Article 87, Uniform Code of Military Justice (UCMJ). See enclosure (2). e. On 28 May 1980, a preliminary inquiry found that Petitioner wrongfully committed an indecent, lewd, and lascivious act upon another Sailor while that Sailor was asleep. See enclosure (3). There is no evidence in Petitioner’s record to establish the disposition of this finding. f. On 30 May 1980, Petitioner received NJP for falsifying an official document in violation of Article 123, UCMJ. See enclosure (4). g. On 3 June 1980, Petitioner received a psychiatric evaluation which determined that Petitioner was inclined to homosexuality, which he admitted to and stated he was not willing to change. Among the clinical recommendations was to “[p]roceed in accordance [with] SECNAV Instruction: 1900.9A.”1 See enclosure (5). h. As a result of Petitioner’s homosexual activity, Petitioner was administratively discharged effective 17 October 1980 by reason of “Unsuitability – Homosexual Tendencies. His service was characterized as honorable, his separation code was listed at “JML,” his reenlistment code was listed as “RE-4,” and the separation authority included “BUPERSMAN 3420185.” See enclosure (6). j. Reference (c) sets forth the Department of the Navy's current policies, standards, and procedures for correction of military records following the repeal of reference (b). It provides that Service Discharge Review Boards should normally grant requests to change the narrative reason for a discharge to “Secretarial Authority,” to recharacterize the discharge to honorable, an/or to change the retry code to “RE-1J,” when the original discharge was based solely on the “Don’t Ask, Don’t Tell” (DADT) policy and when there are no aggravating factors in the record, such as misconduct. MAJORITY CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of reference (c), the Majority of the Board concluded that Petitioner’s request warranted relief. Given the narrative reason for Petitioner’s separation and his honorable characterization of service, the Majority concluded that his discharge was based solely on the DADT policy. Accordingly, it determined that the guidance of reference (c) applies. MAJORITY RECOMMENDATION: In light of the above, the Majority recommends that the following actions be taken on Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that the narrative reason for his 17 October 1977 he was “Secretarial Authority,” that his SPD code was “JFF,” that his reenlistment code was “RE-1J,” and that the separation authority was “MILPERSMAN 1910-164.” That, upon request, the Department of Veterans Affairs be informed that the Board received Petitioner’s application on 21 May 2020. MINORITY CONCLUSION: The Minority of the Board found that Petitioner’s naval record reflected aggravating factors. Specifically, the Minority noted that Petitioner received NJP on two occasions, and was found to have sexually assaulted another Sailor in a documented preliminary investigation. Accordingly, the Minority found that the guidance of reference (c) regarding correcting the records of individuals separated following the repeal of reference (b) did not apply in Petitioner’s case. MINORITY RECOMMENDATION: In light of the above, the Minority recommends that no change be made to Petitioner’s record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. The foregoing action of the Board is submitted for your review and action. Assistant General Counsel (Manpower and Reserve Affairs) MAJORITY Recommendation Approved (Change Narrative Reason for Separation, Separation Code, Separation Authority, and Reenlistment Code)