DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 RLJ Docket No: 935-18 JUL 1 9 2018 5 U.S.C. 552(b)(6) 5 U.S.C. 552(b)(6) Dear : 5 U.S.C. 552(b)(6) This is in reference to your application for correction ofyour naval record pursuant to the provisions oftitle 10 of the United States Code, Section 1552. After careful and conscientious consideration of the entire record, the 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 threemember panel ofthe Board for Correction ofNaval Records, sitting in executive session, considered your application on 12 April 2018. 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 ofyour application, together with all material submitted in support thereof, relevant portions ofyour naval record, and applicable statutes, regulations, and policies. Your application was reviewed under the Don' t Ask, Don't Tell Repeal Act of2010, and the Under Secretary of Defense Memo of20 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. You enlisted in the Navy and began a period of active service on 7 August 1992. During the period from 25 to 26 August 1993, you were in an unauthorized absence (UA) status that terminated with your surrender. There is no disciplinary action noted for this period ofUA. On 4 April 1994, you began a period ofUA that terminated with your surrender on 20 May 1994. On the day of your surrender, you made a voluntary written statement regarding your sexual preference. On 31 May 1994, you began a third period ofUA that terminated with your surrender on 6 June 1994. Subsequently, on 6 June you were charged with two specifications of RLJ Docket No: 935-18 UA and four specifications of missing ship's movement. On 17 June 1994, you were notified of proposed administrative separation by reason of misconduct due to commission of a serious offense and homosexuality. You did not consult with counsel and waived your right to an administrative discharge board. Your Commanding Officer recommended an under other than honorable (OTH) characterization of service based on your periods of UA and admitted homosexuality. On 20 Julyl 994, the discharge authority directed an OTH character of service by reason of misconduct (serious offense) and on 5 August 1994, you were discharged. The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your characterization of service and your contention that you were discharged solely due to your sexual preference. The Board notes that you were dual processed for separation for both misconduct (commission of a serious offense) and homosexuality. Given that your discharge was not solely based on DADT and that your misconduct was an aggravating factor, the Board concluded your discharge was proper as issued and no change is warranted. lt is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence 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, Executive Director 2