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

Docket No: 2145-18   
Ref:  Signature Date 

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 29 April 2019.  The names and votes of the members of the panel 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 this Board.  Documentary material considered by the Board consisted of your application, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.
 
You enlisted in the Navy and began a period of active duty on 1 October 1951.  On 23 September 1952, you were convicted by special court-martial (SPCM) of 52 days of unauthorized absence.  You were sentenced to a period of confinement at hard labor.  On 3 December 1954, a psychiatric clinic evaluation you, and found no evidence of psychosis or serious mental pathology requiring hospitalization.  On 4 December 1954, you submitted a statement regarding your involvement in homosexual acts that occurred onboard your ship, and acceptance of an undesirable discharge (UD) for the good of the service to escape trial by court-martial for wrongfully committing and indecent, lewd, lascivious act with another Sailor onboard your ship.  On 18 December 1954, your commanding officer forwarded your case to the separation authority recommending that you be discharged due to unfitness.  On 5 January 1955, an administrative discharge board recommended that you receive an UD by reason of unfitness.  On 7 January 1955, the separation authority directed that you receive an other than honorable (OTH) discharge by reason of unfitness.  You received your OTH discharge on 20 January 1955.
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your characterization of service, your assertion that you served honorably for over three years, and feel it is time to have your undesirable discharge remitted.  However, the Board concluded these factors and assertion are not sufficient to warrant recharacterization of your discharge given your SPCM conviction, medical evaluation, and your homosexual acts onboard a naval vessel.  The Board noted that your involvement in sexual acts had an adverse impact on morale and discipline.  In your case, you were witnessed by other shipmates participating in a homosexual act with another Sailor.  Although you made a statement, that you knew nothing of what you did on that particular incident, you did admit to participating in other homosexual acts previously with the same Sailor, which consisted of mutual acts of oral coition and masturbation. 

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.  In reviewing your record, the Board determined aggravating factors existed and concluded your discharge was proper as issued and no change is warranted. 

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 matters. 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,