DEPARTMENT OF THE NAVY 

BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 3397-17 

DEC 0 7 2017 

Dear 

This is in reference to your latest reconsideration request dated 10 April 2017. You previously 
petitioned the Board on 7 August 20 I 0 and were advised in our letter dated 13 October 2010 that 
your application had been disapproved. Your subsequent petitions dated 3 November 2010, 
1 February 2011, 6 March 2011, 30 August 2011, 4 October 2011, and 2 November 2011 had 
been previously reviewed and denied reconsideration by the Executive Director but were not 
reviewed by the Board. Those submissions, along with your current case, were reconsidered in 
accordance with Board for Correction ofNaval Records procedures that conform to Lipsman v. 
Secretary of the Army, 335 F.Supp.2d 48 (D.D.C. 2004). 

Your current request has been carefully examined by a three-member panel ofthe Board for 
Correction of Naval Records sitting in executive session on 21 September 2017. The names and 
votes of the members of the panel will be furnished upon request. Documentary material 
considered by the Board consisted ofyour application and any material submitted in support of 
your application. 

You presented as evidence a copy of your medical record and your contention your discharge 
was based solely on the "Don't Ask, Don't Tell" policy. Although this new evidence was not 
previously considered by the Board, the Board determined the seriousness ofyour misconduct 
while on active duty outweighed any mitigating evidence that you provided. Under the Don't 
Ask, Don't Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 
2011 (Correction ofmilitary records following repeal of IO 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. The Board noted you were not 
discharged because you were a homosexual but due to unfitness for duty and in response to your 
Good of the Service (GOS) request to avoid trial by court-martial for sexual misconduct. 
Accordingly, your reconsideration request has been denied. 

It is regretted that the circumstances ofyour reconsideration petition are such that favorable 
action cannot be taken again. You are entitled to have the Board reconsider its decision upon the 
submission ofnew and material evidence. New evidence is evidence not previously considered 
by the Board. In the absence ofsufficient new and material evidence for reconsideration, the 
decision ofthe Board is final, and your only recourse would be to seek relief, at no cost to the 
Board, from a court of appropriate jurisdiction. 

It is important to keep in mind that a presumption ofregularity attaches to all official records. 
Consequently, when applying for a correction of an official riaval record, the burden is on the 
applicant to demonstrate the existence ofprobable material error or injustice. 

Sincerely, 


Executive Director