DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5364-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 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 (2) Subject's naval record (excerpts) 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with this Board requesting a discharge upgrade and the removal of all 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 18 June 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 enclosure (1) 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. Regarding the Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the Petitioner’s case based on the evidence of record. d. Petitioner originally enlisted in the Navy on 23 May 1983. On 6 August 1986, the Petitioner went to a Special Court-Martial (SPCM) in . Contrary to his pleas, Petitioner was found guilty of attempted sodomy with another male sailor while on board Naval Station . The Petitioner’s adjudged sentence was to be reduced to the lowest enlisted paygrade (E-1), and to be discharged from the Navy with a bad conduct discharge (BCD). Prior to the SPCM, Petitioner spent approximately 72 days in pretrial confinement. On 12 November 1986, the convening authority approved the findings and sentence. At the time of his sentencing, Petitioner’s average conduct marks were 3.7 out of 4.0. His service record was otherwise clean and Petitioner had no other previous court-martial convictions, non-judicial punishments (NJP), or adverse Page 13 counseling entries in his record. e. Following completion of the post-trial appellate review process, on 9 March 1988, the punitive discharge was ordered executed. Ultimately, the Petitioner was separated from the Navy with BCD on 4 April 1988 and assigned an RE-4 reentry code. f. 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 grant requests to change the characterization of service to “honorable,” 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 concluded that Petitioner’s request warrants relief. The Board decided that the documentation provided was sufficient to establish the existence of probable material error or injustice. The Board noted Petitioner’s record supports that he was punitively discharged for an attempt to engage in a homosexual act, and that there were arguably no aggravating factors related to homosexuality surrounding his discharge. In this regard, the Board noted the Petitioner’s overall record of military service and current Department of the Navy policy as established in reference (c), and concluded that relief in the form of changing his discharge characterization, narrative reason for separation, separation authority, separation code, and his reenlistment/re-entry code was proper at this time. The Board also noted that independent from DADT policy concerns, relief would also have been similarly granted based on the totality of the circumstances viewed through the lens of a sentence appropriateness analysis. The Board determined that justice was clearly not achieved in this case, and that the punishment the Petitioner received was unjust and wholly disproportionate to the offense committed. The Board further concluded that the court-martial sentence defied logic and was inappropriately severe. The military judge essentially “threw thebook” at a first time offender for a relatively minor offense. In the Manual for Courts-Martial, Rules for Courts-Martial 1003(b)(8)(A) states that a bad-conduct conduct discharge is “…appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary.” (emphasis added). In this case, the Board observed that we had a single minor attempted offense, completely lacking any aggravating circumstances. The Board unequivocally determined, that in the absence of any aggravating factors, this overly harsh sentence clearly shocked one’s sense of equity, and that this clear-cut injustice demands and dictates clemency. RECOMMENDATION: In view of the above, the Board directs the following corrective action. That Petitioner’s naval record be corrected to show that the characterization of service is changed to “Honorable,” the narrative reason for separation is changed to “Secretarial Authority,” the separation authority is changed to “MILPERSMAN 1910-164,” the separation code is changed to “JFF,” and the reentry/reenlistment code is changed to “RE-1J.” It is further directed that Petitioner be issued a new DD Form 214. That Petitioner be issued a new honorable discharge certificate. That any and all previously existing DD Form 214 be removed from Petitioner’s naval record. 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 22 May 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 Regulation, 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.