Docket No: 10009-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. §1552 (b) USD Memo, “Correction of Military Records Following Repeal of Section 654 to Title 10, United States Code,” 20 September 2011 Encl: DD Form 149 with attachment 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed the enclosure with the Board for Correction of Naval Records (Board) requesting a change to his social security number (SSN) on his DD Form 214 and a medical discharge.1 Upon review of Petitioner’s naval service record, the Board discovered that Petitioner’s record contained derogatory information regarding Petitioner’s discharge due to homosexual conduct for which Reference (b) would apply. After careful and deliberate consideration of the Petitioner’s application, the majority of the Board found injustice in this derogatory information. According, the majority of the Board recommended relief as described below. 1 Reference (a) originally requested only a change to Petitioner’s SSN. Subsequent to receipt of Reference (a), the Board sent correspondence to Petitioner dated 18 October 2019 requesting that he provide missing information. Upon returning Reference (a) with the requested information, Petitioner also provided a statement elaborating on the information provided. Within this statement, Petitioner asserted that “there should be some kind of benefits due to [the accident that he describes that resulted in third-degree burns].” The Board interpreted this statement to be a request for medical discharge that would presumably result in the benefits Petitioner described. 2. The Board reviewed Petitioner’s allegations of error and injustice on 17 August 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 enclosure, relevant portions of Petitioner’s naval service records, 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 the enclosure 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 Marine Corps and began a period of active duty service on 1 August 1955. d. On 9 November 1956, Petitioner, while a private first class, admitted to engaging in sexual activity with a sergeant. He was subsequently charged with sodomy in violation of Article 125, Uniform Code of Military Justice (UCMJ), and accepted an undesirable discharge under other than honorable (OTH) conditions in lieu of trial by court-martial. Petitioner’s request for discharge was approved on 3 December 1956. e. After being held on active duty for a period pending the sergeant’s court-martial, Petitioner was discharged on 8 February 1957.2 The DD Form 214 issued pursuant to this discharge characterized Petitioner’s service as “conditions other than honorable” and the reason and authority for the discharge as “389-Para 10277.2a(7), MarCorManual & CMC msg 052232Z of Dec56.”3 2 Petitioner’s records reflect that he received nonjudicial punishment (NJP) on 23 December 1956 for signing a false statement in violation of Article 107, UCMJ, and drunk and disorderly conduct in camp in violation of Article 134, UCMJ. This misconduct and NJP, administered subsequent to the approval of Petitioner’s discharge, does not appear to have impacted the discharge. 3 Paragraph 10277.2a(7), MARCORMANUAL, referred to discharge for homosexual conduct, while the 5 December 1956 message approved Petitioner’s discharge as for “unfitness and to escape trial by [general court-martial] [for the offense of sodomy in violation of Article 125, UCMJ]. 4 The DD Form 215 cancelling Petitioner’s original DD Form 214 stated 10 U.S.C. § 1552 as its authority. 5 This change removed reference to the 3 December 1956 message approving Petitioner’s discharge, which listed avoidance of court-martial (for the charge of sodomy in violation of Article 125, UCMJ) as the reason for separation. f. The Board previously reviewed Petitioner’s discharge, and directed an upgrade to Petitioner’s discharge.4 On 19 December 1985, Petitioner was issued a DD Form 215 canceling Petitioner’s original DD Form 214 and a new DD Form 214 was issued. The new DD Form 214 characterized Petitioner’s service as “under honorable conditions” (General discharge), and reflected the narrative reason for separation as “unfitness.”5 Both the DD Form 215 and the updated DD Form 214 listed Petitioner’s SSN as xxx--xxxx. g. By memorandum dated 20 September 2011, Reference (b) set forth Department of the Defense policy for correcting military records following the repeal of 10 U.S.C. § 654 (“Don’t Ask, Don’t Tell” (DADT)). It provides service Discharge Review Boards with guidance to grant requests to change the characterization of service to “honorable,” narrative reason for discharge to “secretarial authority,” SPD code to “JFF,” and reenlistment code to “RE-1J,” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and there are no aggravating factors in the record. h. In the enclosure, Petitioner asserts that his SSN is actually xxx--xxxx, and requests a change to his DD Form 214 reflecting this SSN. Petitioner also asserts that he received third-degree burns over the right side of his body while he was working as a cook in the Marine Corps, and contends that he has been scarred for life should be entitled to benefits. MAJORITY CONCLUSION: The Majority reviewed Petitioner’s request for a change to his SSN on his DD Form 214, as well as his request for the issuance of a medical discharge. With regard to Petitioner’s SSN as reflected on the DD Form 214, the Majority found that Petitioner did not provide sufficient information, such as a copy of his Social Security card or a statement from the Social Security Administration, to support a change to the SSN on his DD Form 214 to xxx--xxxx. 6 The Majority indicated that the Board would reconsider Petitioner’s request if he provides supporting documentation of his asserted SSN. 6 The Board could find no reference to Petitioner’s SSN in his records prior to the DD Form 215, 19 December 1985. All previous records referred to Petitioner’s service number. With regard to Petitioner’s request for a medical discharge, the Majority found that Petitioner’s record and the information submitted with his application for correction did not establish that he suffered from a medical condition at the time of his discharge that impacted his fitness for duty. Absent evidence establishing that Petitioner suffered from burns that rendered him unfit for the performance of his duties in 1957, the Majority found that Petitioner was not entitled to a medical discharge. The Majority reviewed Petitioner’s discharge proceedings from the Marine Corps and noted that he appears to have been separated from active duty solely due to an allegation of homosexual conduct. The Majority also noted that the alleged conduct occurred with a Marine Corps sergeant. Given the rank disparity, with Petitioner being significantly junior, the Majority found that the allegations against Petitioner were not associated with any aggravating factors. Accordingly, the Majority concluded that it is appropriate to apply Reference (b) given that Petitioner’s discharge appears to have been initiated under the now-outdated policy guidelines. MAJORITY RECOMMENDATION: In view of the above, the majority of the Board recommends the following corrective action: That Petitioner be issued a new DD Form 214 reflecting that on 8 February 1957, Petitioner was discharged with an honorable character of service, the narrative reason for separation was “Secretarial Authority,” the separation code was “JFF1, the separation authority was “MARCORSEPMAN PAR 6421,” and the reenlistment code was “RE-1J.” That Petitioner be issued an honorable discharge certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 30 October 2019. MINORITY CONCLUSION: With regard to Petitioner’s SSN as reflected on the DD Form 214, the Minority concurred with the Majority and found that Petitioner did not provide sufficient information to support Petitioner’s requested change to the SSN on his DD Form 214 to xxx--xxxx. The Minority concurred with the Majority in noting that the Board would reconsider Petitioner’s request upon the submission of supporting documentation. With regard to Petitioner’s request for a medical discharge, the Minority concurred with the Majority and found that Petitioner’s record and the information submitted with his application for correction did not establish that he suffered from a medical condition at the time of his discharge that impacted his fitness for duty. Absent evidence establishing that Petitioner suffered from burns that rendered him unfit for the performance of his duties in 1957, the Minority concurred with the Majority and found that Petitioner was not entitled to a medical discharge. The Minority also reviewed Petitioner’s discharge proceedings from the Marine Corps in consideration of the fact that he appears to have been separated from active duty due to an allegation of homosexual conduct. The Minority noted that the alleged conduct occurred with a Marine Corps sergeant. Contrary to the Majority’s finding, the Minority found that at the time of Petitioner’s service, the alleged relationship between fellow service members was an aggravating factor, and therefore the undesirable discharge issued to Petitioner was appropriate. The Minority determined that corrective action under the guidance of reference (b) is not appropriate. MINORITY RECOMMENDATION: In view of the above, the Minority recommends the following: That Petitioner’s naval records remain unchanged and no relief be granted. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 30 October 2019. 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. 11/13/2020