DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490
            
Docket No: 40-19  
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 corresponding 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 9 April 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 on 1 December 1981.  On 14 September 1982, Petitioner went to non-judicial punishment (NJP) for disrespect to a superior petty officer.  On 20 December 1982, Petitioner went to NJP for unauthorized absence (UA), missing movement of the USS            (         ), and the wrongful use of a controlled substance.  At his NJP, the Petitioner made certain statements and admissions to the Commanding Officer regarding the 
circumstances surrounding his UA that triggered his administrative separation processing for homosexuality. 

    d.  On 22 December 1982, the Petitioner was notified of administrative separation proceedings by reason of homosexual conduct as evidenced by the member’s statement that he is a homosexual and engaged in, desired to engage in, and intended to engage in homosexual acts.  The Petitioner waived his rights to consult with counsel and present his case to an administrative separation board.  On 14 February 1983, the Petitioner was discharged with an under honorable conditions (general) characterization of service (GEN) with “homosexual,” as the narrative reason for his separation. 

    e.  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 especially in light 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 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. 

Notwithstanding the corrective action recommended below, the Board was not willing to upgrade the Petitioner’s discharge characterization or change the reentry code.  The Board observed the Petitioner had two NJPs in his record for offenses separate and distinct from homosexuality.  The Board noted that the combined NJPs could have independently formed the basis for administrative separation for misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct, and misconduct due to drug abuse, and potentially resulted in an other than honorable (OTH) characterization.  Accordingly, the Board determined that significant negative aspects of the Petitioner’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 Petitioner a GEN characterization of discharge.  Lastly, the Board also noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  The Petitioner’s overall active duty trait average was 2.33 in conduct.  Navy regulations in place at the time of his discharge required a minimum trait average of 3.0 in conduct/military behavior for a fully honorable characterization of service. The Board determined that Petitioner’s conduct/military behavior marks during his active duty career were a direct result of his misconduct and not due to any homosexual conduct.  In the end, the Board concluded that the Petitioner received the correct discharge characterization and reentry code based on the totality of his circumstances. 

RECOMMENDATION: 
In view of the above, the Board directs the following corrective action: 

That Petitioner’s be issued a new DD Form 214 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.” 

That a copy of this report of proceedings be filed in Petitioner’s naval record. 

That no further changes be made to the record. 

That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 26 November 2018. 

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. 


4/23/2020