DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10754-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) 10 U.S.C. 654 (Repeal) (c) UNSECDEF Memo of 20 Sep 11 (Correction of Military Record following Repeal of U.S.C. 654) Encl: (1) DD Form 149 with attachments 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed the enclosure with this Board requesting a change to his discharge characterization, and the removal of all related references to homosexuality on Petitioner’s Certificate of Release or Discharge from Active Duty (DD Form 214), to reflect current military directives and policy. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 16 January 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 enclosures, together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, 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 began a period of active duty in the Navy on 3 August 1998. On 18 March 1999, Petitioner went to non-judicial punishment (NJP) for the failure to obey a lawful order. Following the NJP he received both a “Page 13” counseling warning and a special evaluation documenting his NJP. On 13 April 1999, Petitioner went to NJP for assaulting another service member. On 14 April 1999, he was disenrolled from the Nuclear Power Training Program for demonstrated unreliability and also administratively reduced to the lowest enlisted paygrade. On 6 November 1999, the Petitioner provided a voluntary statement to his Commanding Officer declaring a desire and intent to pursue a homosexual relationship. On 24 January 2000, Petitioner went to NJP for unauthorized absence and for two specifications of failing to obey a lawful order. On 13 March 2000, the Petitioner was notified of administrative separation proceedings by reason of: (a) homosexual conduct as evidenced by the member’s statement that he is a homosexual, or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has propensity to engage in, or intends to engage in homosexual acts, (b) misconduct due to the commission of a serious offense, and (c) misconduct due to a pattern of misconduct. The Petitioner waived his rights to consult with counsel, submit a written statement on his own behalf, and present his case to an administrative separation board. On 7 May 2000, the Petitioner was discharged with a general (under honorable conditions) characterization of service (GEN) with “homosexual conduct admission,” as the narrative reason for his separation. d. References (b) and (c) set forth the Department of the Navy’s current policies, standards, and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal of 10 U.S.C. 654. It provides service Discharge Review Boards with the guidance to normally grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it and there are no aggravating factors in the record, such as misconduct. CONCLUSION: Upon review and consideration of all the evidence of record, and in accordance with of references (b) and (c), the Board concludes that Petitioner’s request warrants partial relief. The Board noted Petitioner’s record supports that he was administratively discharged in part due to his homosexuality based on DADT, and that there were no aggravating factors surrounding his homosexual conduct. However, the Board observed that the Petitioner was involved in multiple instances of misconduct unrelated to homosexuality. In this regard, the Board notes the Petitioner’s overall record of military service and current Department of the Navy policy as established in reference (c), and concludes that relief in the form of only changing his narrative reason for separation, separation authority, and separation code is proper at this time. Notwithstanding the corrective action recommended below, the Board was not willing to upgrade the Petitioner’s discharge characterization or change the reenlistment code. The Board observed the Petitioner had three NJPs in his record for offenses separate and distinct from homosexuality. The Board noted that the NJPs alone could have independently formed the basis for administrative separation for both misconduct due to the commission of a serious offense and a pattern of misconduct, and potentially resulted in an other than honorable (OTH) characterization of service. Accordingly, the Board determined that significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service record, and that such misconduct ultimately supported the separation authority’s decision to issue him a GEN characterization of discharge. In the end, the Board concluded that the Petitioner received the correct discharge characterization and reentry code based on the totality of his circumstances, and that such GEN characterization and RE-4 reentry code was in accordance with all Department of the Navy directives and policy at the time of his discharge. The Board noted that normally a DD Form 215 would be issued to correct the record, however, the Board concluded that a new and updated DD Form 214 is warranted to eliminate the possibility of invasive questions. RECOMMENDATION: In view of the above, the Board directs the following corrective action: That Petitioner’s naval record be corrected to show that his narrative reason for separation is changed to “Secretarial Authority,” the separation authority is changed to “MILPERSMAN 1910-164,” and the separation code is changed to “JFF.” It is further directed that Petitioner be issued a new DD Form 214. 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 18 November 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 3/2/2020