Docket No: 10562-19 
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) 10 U.S.C. § 654 (Repeal) 
         (c) USD Memo, “Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code,” 20 September 2011 (d) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determination,” 25 July 2018 
             
Encl:   (1) DD Form 149  
        (2) NAVPERS 1070/607, Court Memorandum, dtd 7 Mar 94 
        (3) NJP, dtd 27 Apr 96 
        (4) Memorandum, subj: Notice of an Administrative Board Procedure Proposed Action, 27 Apr             96 
        (5) Petitioner’s Memo, subj: Statement of Awareness and Request for, or Waiver of  
            Privileges, 27 Apr 96 
        (6) BUPERS Msg, dtg 171830Z May 96 
        (7) 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 that his characterization of service be upgraded to general or honorable. 
 
2.  The Board reviewed Petitioner’s allegations of error and injustice on 16 November 2020 and, pursuant to its regulations, determined that no corrective action should be taken on Petitioner’s record.  As discussed below, I do not concur with the Board’s recommendation, and believe that relief is warranted.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (c) and (d).   
 
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 review the application on its merits.   
 
     c.  Petitioner enlisted in the Navy and began a period of active service on 8 June 1993.  See enclosure (7).  
 
      d.  On 18 March 1994, Petitioner received nonjudicial punishment (NJP) for willfully destroying a government-owned telephone, valued at $36.90, in violation of Article 108, Uniform Code of Military Justice (UCMJ), and wrongfully possessing and consuming alcoholic beverages as a minor, in violation of Article 134, UCMJ.  See enclosure (2). 
 
      e.  On 27 April 1996, Petitioner received NJP for two specifications of sodomy in violation of Article 125 UCMJ.  One of these instances of sodomy was alleged to have occurred onboard a naval vessel.  See enclosure (3). 
 
     f.  By memorandum dated 27 April 1996, Petitioner was notified that he was being considered for administrative discharge from the Naval Service by reason of commission of serious offenses and homosexual conduct.  The serious offenses were purportedly evidenced by the two NJPs discussed in paragraphs 3d and 3e above, while the homosexual conduct was evidenced by his allegedly engaging in, attempting to engage in, or soliciting another to engage in a homosexual act.  See enclosure (4). 
 
   g.  Petitioner did not consult with counsel and waived his right to an administrative discharge board.  In doing so, he acknowledged that he could receive an other than honorable (OTH) discharge.  See enclosure (5).   
 
 h.  By message dated 17 May 1996, the separation authority directed that Petitioner be separated under OTH conditions.  See enclosure (6).   
 
      i.  On 25 June 1996, Petitioner was discharged from the Navy under OTH conditions.  The narrative reason for his discharge was listed as “Misconduct.”  See enclosure (7). 
 
      j.  Petitioner contends that he was falsely accused of homosexual conduct by a fellow Sailor who was upset at him for rejecting his advances, and that his accuser convinced two of his friends who wanted out of the Navy to lie by saying that they also had homosexual encounters with Petitioner.  He also contends that he chose not to fight the allegations because his wife was pregnant and due within a few months, and he was informed that he would be restricted to the ship if he decided to fight his NJP at a court-martial.  See enclosure (1). 
 
  k.  Reference (c) sets forth the Defense Department'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 discharge and upgrade characterizations of service when the original discharge was based solely on the so-called “Don’t Ask, Don’t Tell” policy, or any similar policy in place prior to its enactment, and when there are no other aggravating factors in the record such as misconduct.   
 
 
BOARD CONCLUSION: 
 
Upon careful and conscientious consideration of all of the evidence of record, the Board found insufficient evidence to establish an error or injustice in Petitioner’s characterization of service. 
 
In reaching this conclusion, the Board noted that Petitioner was not separated solely based upon homosexual conduct, but also based upon misconduct.  Additionally, the Board did not have evidence regarding the circumstances of Petitioner’s sodomy offenses, but noted that one of the instances occurred onboard a naval vessel.  Accordingly, the Board determined that aggravating circumstances existed, and therefore an upgrade to Petitioner’s characterization of service was not warranted in accordance with reference (c). 
 
In addition to considering Petitioner’s application in accordance with the guidance of reference (c), the Board also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (d).  In this regard, the Board considered, among other factors, the fact that Petitioner’s misconduct appears to have been relatively minor; that Petitioner would not be punished for consensual homosexual acts today; Petitioner’s contention that he never engaged in homosexual conduct, but rather was falsely accused by another Sailor; Petitioner’s relative youth and immaturity at the time of his alleged misconduct; and the passage of time since Petitioner’s discharge.  Even considering these potentially mitigating factors, however, the Board determined that relief is not warranted in the interests of justice.  The Board simply did not find the mitigating circumstances to be sufficient to warrant an upgrade to Petitioner’s characterization of service.  In this regard, the Board noted that Petitioner did not provide the Board with much information upon which an upgrade decision could be based.   
 
BOARD RECOMMENDATION: 
 
In view of the above, the Board recommends that no corrective action be taken on Petitioner’s naval record.   
 
EXECUTIVE DIRECTOR CONCLUSION: 
 
While I agree with the Board that Petitioner’s misconduct creates an aggravating factor upon which it can justify its decision not to grant relief in accordance with reference (c), I disagree with the Board’s conclusion that Petitioner’s OTH characterization of service does not represent an injustice.  Apart from Petitioner’s two alleged instances of sodomy, which would no longer be a basis for separation, Petitioner’s misconduct consisted of destroying government property valued at $36.90 and underage drinking.  Given these circumstances, I do not believe Petitioner would have been recommended for separation, much less under OTH conditions, if the conduct in question for his second NJP had been heterosexual in nature.  Accordingly, I believe Petitioner’s OTH characterization of service under the circumstances represents an injustice, and that an upgrade is therefore warranted.     
 
EXECUTIVE DIRECTOR’S RECOMMENDATION: 
 
In view of the above, I recommend that the following corrective actions be taken on Petitioner’s naval record: 
  
That Petitioner be issued a new DD Form 214 indicating that his service was characterized as “honorable”; that the narrative reason for his separation was “Secretarial Authority”; that his separation code was “JFF”; that his reenlistment code was “RE-1J”; and that his separation authority was “MILPERSMAN 1910-164.”    
 
That Petitioner be issued an honorable discharge certificate. 
 
That a copy of this report of proceedings be filed in Petitioner’s naval 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-titled matter. 
 
5.  The foregoing action of the Board is submitted for your review and action.  
 
                                                                                                                                                                                               1/25/2021