DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4374-19 Ref: Signature Date Dear : 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 29 August 2019. 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 20 March 2002. On 16 November 2002, you received nonjudicial punishment (NJP) for four specifications of unauthorized absence (UA) lasting 31, four, one, and 15 days, respectively. All four UA periods were from the USS (CVN- ). On 20 December 2002, you made a voluntary written statement admitting to engaging in homosexual acts with another service member. In your statement, you expressly admitted: “ and I went UA from the USS for 30 days so that we could be together because we new [knew] the military would not except [accept] it in any way. I have engaged in homosexual acts with .” On 9 January 2003, you were notified of administrative separation by reason of: 1) homosexual conduct as evidenced by your statement that you are homosexual, and 2) misconduct due to the commission of a serious offense. Your UA in excess of 30 days met the serious offense threshold criteria because the maximum punishment for such an offense at a court-martial is a punitive discharge. You waived your rights to consult with counsel, submit a written statement, and present your case to an administrative separation board. Navy Personnel Command directed that you be separated with a general (under honorable conditions) (GEN) discharge. However, on 6 March 2003, you were erroneously discharged with an other than honorable (OTH) characterization of service with “homosexual admission,” as the narrative reason for your separation. In December 2016, the Naval Discharge Review Board (NDRB) changed your erroneous OTH characterization to GEN, and removed all corresponding references to homosexuality on your DD Form 214. The NDRB, however, did not upgrade your characterization to honorable or modify your reentry/reenlistment code from RE-4. The NDRB concluded your GEN discharge was proper and equitable given the number of days of UA in your record. 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 Section 654 of Title 10, United State Code), both 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. The current policy now provides service discharge review boards with the guidance to 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. The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to: (a) that the commanding officer (CO) erroneously found you guilty of UA but you were assigned temporarily to the USS during that time period, (b) that, as evidenced by your leave and earnings statement (LES) with sea pay starting on 24 September 2002, you were not attached to the USS , (c) that the separation authority erroneously and unfairly discharged you with a GEN because misconduct was not a reason for separation, (d) that the CO made no further mention of “serious offense” at all and actually recommended that you be discharged for homosexual admission, (e) that you were absent from your unit because you were harassed relentlessly for your sexual orientation, and (f) that post-service you have been diagnosed with a history of schizophrenia and been hospitalized to stabilize your psychosis. The Board concluded these factors were not sufficient to warrant recharacterization of your discharge given your misconduct. The Board determined that your cumulative misconduct warranted no higher than a GEN discharge. You also admitted in your personal statement that you were UA from the USS to spend time with your homosexual partner, thus, any argument that you were assigned to another ship lacks merit. There are also no orders or other official documentation in your record showing you were temporarily assigned elsewhere. Further, on your November 2002 LES, the line item “career sea pay” did not commence until 30 October 2002. Moreover, you did not appeal your NJP punishment for the four separate UAs from the . A review on appeal would have discovered any TAD orders to a different ship and likely warranted relief, had such orders existed. The Board also determined that there is no evidence upon which to find your misconduct is attributable to PTSD, and that your post-service schizophrenia diagnosis is clearly not service-connected. Additionally, as outlined in the Naval Military Personnel Manual, the administrative separation process encompasses a performance review of a service member’s entire military record, and commands are required to process members for all reasons for which minimum criteria are met. Your administrative separation notification paperwork indicated that you were being dual processed for both homosexual conduct and misconduct due to the commission of a serious offense. Upon discharge, the separation authority then selected the most appropriate reason to approve separation. In your case, the ultimate reason for separation was “homosexual admission.” By selecting this reason, this does not imply that your additional basis for separation (misconduct due to a serious offense) no longer exists or did not contribute to your discharge characterization or reentry code. Lastly, the Board noted the record shows you were notified of, and waived, your procedural rights in connection with your administrative separation. Accordingly, the Board determined that there was no material error or injustice in your discharge characterization and reentry code. The Board ultimately concluded that you received the correct characterization based on the totality of your circumstances, and that your GEN discharge and RE-4 reentry code were in accordance with Department of the Navy directives and policy at the time of your discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD memo). The USD memo sets clear standards and principles to guide correction boards in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD memo, the Board still concluded that, given your UAs, your request does not merit relief. 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, 10/8/2019 Executive Director