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) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Case Summary 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his under other than honorable conditions (OTH) discharge. Enclosures (1) and (2) apply. 2. The Board, consisting of , , and , reviewed Petitioner's allegations of error and injustice on 21 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 enclosures, relevant portions of his naval service records, and applicable statutes, regulations, 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 enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. The Petitioner initially enlisted in the Navy Reserve on 29 November 1966. On Petitioner’s enlistment documents, he expressly denied: (a) using drugs or narcotics within the past 5 years without a prescription, and (b) ever engaging in any homosexual conduct. Petitioner entered active duty one year later on 29 November 1967. d. On 6 December 1967, Petitioner underwent a psychiatric evaluation. He admitted to the Medical Officer that he engaged in homosexual acts and used illegal and dangerous drugs pre-service. On 8 February 1968, Petitioner made a voluntary statement to the Office of Naval Intelligence (ONI). Petitioner admitted to ONI that he engaged in homosexual acts multiple times with the same person from September 1965 to April 1966, and also that he consumed LSD and amphetamines pre-service. e. On 9 February 1968, Petitioner received a letter of notification informing him that he was being considered for an administrative discharge for failing to reveal his pre-service homosexual conduct and drug use. Petitioner waived his rights to be represented by counsel and to have his case heard by a board of not less than three officers. Ultimately, the Petitioner was discharged on 27 March 1968 for fraudulent entry with an other than honorable conditions (OTH) characterization of service and was assigned an RE-4 reentry code. f. On his BCNR application, the Petitioner argued that his misconduct occurred prior to joining the Navy and stated that he did not engage in homosexual conduct or drug use while he was on active duty. Petitioner also stated that he has lived a law abiding and productive life and loves his country. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request merits partial relief, given the totality of his circumstances. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose of the Under Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, to include, but not limited to: positive or negative post-conviction conduct, acceptance of responsibility, remorse, or atonement for misconduct, the length of time since misconduct, the severity of the misconduct, whether misconduct may have been youthful indiscretion, character references/letters of recommendation, meritorious service in government or other endeavors, and/or job history. In this regard, the Board noted that Petitioner’s characterization was unduly harsh given the type of misconduct involved, the absence of any homosexual conduct or drug use on active duty, the lack of any other derogatory matters in Petitioner’s record, and that the relative severity of some misconduct can change over time. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under an OTH characterization. The Board concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the discharge characterization should change to “general (under honorable conditions)” (GEN). Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally determined that Petitioner had a legal, moral and ethical obligation to remain truthful on his enlistment paperwork. Had Petitioner properly and fully disclosed his pre-service homosexual conduct and drug use, he would have been disqualified from enlisting. The Board determined that, in fairness to those sailors who serve honorably and without incident during a time of war, sailors should receive no higher discharge characterization than is due. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate and no higher. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the reentry code be changed to “RE-1.” That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That Petitioner be issued a new General (Under Honorable Conditions) 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 2 April 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.