DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3028-19 Ref: Signature Date This 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 14 April 2020. 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, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. You enlisted in the Navy on 18 May 1982. During the period from 12 April 1983 to 14 December 1984, you received four non-judicial punishments (NJPs) for three specifications of disobeying a lawful order, two specifications of damage to government property, disrespectful in language, fighting, drunk and disorderly conduct, and absence from your appointed place of duty. On 13 February 1985, you admitted to experiencing homosexual desires and expected them to continue. You received two more NJPs on 26 February 1985 and 5 March 1985 for stealing food from the mess and for assault. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to homosexuality/commission of a serious offence/pattern of misconduct. After you waived your rights, your commanding officer (CO) recommended that you be discharged with an other than honorable (OTH) characterization of service for homosexuality, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct. On 4 June 1985, the discharge authority approved your CO’s recommendation and directed your separation with an OTH discharge for misconduct due to a pattern of misconduct/frequent involvement with military authorities. On 18 July 1985, you were discharged. The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your characterization of service and the change in policy pursuant to the Don’t Ask, Don’t Tell Repeal Act of 2010. However, the Board concluded these factors were not sufficient to warrant re-characterization of your discharge given your frequent misconduct. 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 the following 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 and the evidence you provided, the Board determined aggravating factors existed and concluded your discharge was proper as issued and no change is warranted. In regard to your contention that you were discharged due to your sexual performance, the Board noted the record contains documented evidence that is contrary to your contention. The record shows that on 18 July 1985, you were discharged with an OTH discharge due to a pattern of misconduct/frequent involvement with military authorities due to your six NJPs. The Board also considered your contentions that there were active hunts for homosexuals within the division, you were persecuted, and fellow service members attempted to take your life due to your sexual preference. The Board noted that there is no evidence in your record, and you submitted none, to support your contentions. The Board also noted that the record shows that you were notified of and waived your right to present your case to an administrative discharge board (ADB). In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. 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 the submission of new matters, which will require you to complete and submit a new DD Form 149. 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, 5/1/2020