Docket No: 6038-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , XXX-XX, USN Ref: (a) 10 U.S.C. § 1552 (b) SECNAVINST 5420.193, 19 November 1997 (c) 10 U.S.C. § 654 (Repealed) (d) USD Memo, “Correction of Military Record following Repeal of U.S.C. 654,” 20 September 2011 (e) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, and Clemency Determinations,” 25 July 2018 Encl:(1) DD Form 149 with attachments (2) DD Form 214 (3) Nonjudicial Punishment (4) Commanding Officer Memo, subj: Notice of an Administrative Board Procedure Proposed Action, 9 June 1984 (5) Petitioner Memo, subj: Statement of Awareness and Request For, or Waiver of, Privileges, 13 June 1984 (6) Report of Administrative Discharge Board held on board on 13 August 1984 in the case of [Petitioner], 14 August 1984 (7) ., Ph.D, Clinical Psychology Letter, dtd 4 October 1984 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that her characterization of service be upgraded to honorable, that his pay grade be restored to E-5, and that his submarine service qualification be restored. 2. The Board, consisting of, reviewed Petitioner's allegations of error and injustice on 16 December 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 enclosure (1), relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (d) and (e). 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, the statute of limitations was waived in accordance with reference (d). c. Petitioner enlisted in the Navy and began a period of active duty on 27 September 1979. See enclosure (2). d. On 8 June 1984, Petitioner received non-judicial punishment (NJP) for assault in violation of Article 128, Uniform Code of Military Justice. His punishment consisted of forfeiture of pay and a one grade reduction to E-4. The record reflects no further details of the nature or circumstances of this assault. See enclosure (3). e. By memorandum dated 9 June 1984, Petitioner was notified that he was being considered for administrative discharge by reason of homosexuality, as evidence by the fact that he “engaged in, attempted to engage in or solicited another to engage in a homosexual act or acts” and that he “stated that [he was] homosexual.” See enclosure (4). f. By memorandum dated 13 June 1984, Petitioner elected to request an administrative discharge board (ADB). See enclosure (5). g. On 15 August 1984, the ADB unanimously found that Petitioner engaged in homosexuality as evidenced by committing a homosexual act aboard a naval vessel, and recommended that Petitioner be separated under other than honorable (OTH) conditions. See enclosure (6). Other than the findings, the record does not include the proceedings of the Petitioner’s ADB. However, it does include a letter addressed to a civilian attorney (presumably Petitioner’s attorney), dated 4 October 1984, from a clinical psychologist, indicating that the ADB record of proceedings was “so abbreviated that the report of [his] testimony was absurd.” Included among the objections made by this presumedly expert witness were references to homosexual masturbation upon another individual. This letter also suggests that there was some question regarding whether the other individual would have experienced fear or anxiety during such an incident. See enclosure (7). h. On 23 October 1984, Petitioner was discharged from the Navy under OTH conditions by reason of homosexuality. The narrative reason for Petitioner’s discharge states, “Engaged in, attempted to engage in, or solicited another to engage in homosexual act or acts.” See enclosure (2). i. Reference (c) sets forth the Department of the Navy's current policies, standards, and procedures for correction of military records following the repeal of reference (c). It instructs service Discharge Review Boards to upgrade characterizations of service to “honorable,” and change narrative reasons for discharge to “Secretarial Authority,” SPD codes to “JFF,” and reentry codes to “RE-1J,” when the original discharge was based solely upon the former “Don’t Ask, Don’t Tell” policy or similar policies in place prior to enactment of reference (c), and if there are no other aggravating factors in the record such as misconduct. CONCLUSION: Upon careful and conscientious consideration of all of the evidence of record, the Board determined that only partial relief is warranted. Specifically, in accordance with reference (d), the Board determined that Petitioner’s narrative reason for separation should be changed to “Secretarial Authority,” that the SPD code should be changed to “JFF,” and that the separation authority should be changed to “MILPERSMAN 1910-164.” Although the Board found the above referenced corrections to be appropriate, it did not believe that Petitioner’s characterization of service or reenlistment code should be changed due to the aggravating circumstances in the record. While the specific circumstances of the homosexual act which resulted in Petitioner’s discharge are not clear from the record, the Board noted that Petitioner received NJP for an assault one day prior to being notified that he was being considered for separation for homosexual conduct. Further, enclosure (7) suggests that homosexual masturbation of another individual, and the fear or anxiety that such an act would impart on the recipient, were points of contention during the ADB. Based on the timing and the contents of enclosure (7), and in the absence of other evidence describing the circumstances, the Board concluded that Petitioner’s homosexual act was more likely than not related to the assault for which he received NJP. Accordingly, the Board found that the aggravating circumstances did not warrant an upgrade to Petitioner’s characterization of service or his reenlistment code. For the same reason that the Board found that Petitioner’s characterization of service and reenlistment code should not be changed, the Board also found that Petitioner’s grade should not be restored to E-5 or that he submarine qualification should be restored. With regard to the former, the Board notes that Petitioner provided no evidence suggesting that the NJP that reduced him in grade was erroneous, or any explanation of the circumstances of the alleged assault. The Board also considered all potentially mitigating factors to determine whether the interests of justice warrant relief in accordance with reference (d). These included, but were not limited to, Petitioner’s complete service record, reflecting more than five years of service and the award of three Sea Service Deployment ribbons, a good conduct medal, submarine qualification, and a commendation award; Petitioner’s enlisted performance record, reflecting generally high performance traits except for his final rating for personal behavior; the stigmatizing effect of Petitioner’s characterization of service; the Petitioner’s relative youth at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief. Specifically, given the Board’s conclusion that Petitioner’s homosexual act was more likely than not related to the assault for which he received NJP, the Board determined that the aggravating factors outweighed the potentially mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that Petitioner’s application did not warrant further relief. RECOMMENDATION: In view of the above, the Board recommends the following corrective actions on Petitioner’s service record: That Petitioner be issued a new DD Form 214 reflecting that the narrative reason for his separation was “Secretarial Authority”, that his SPD code was “JFF”, and his separation authority was “MILPERSMAN 1910-164”. That no further changes be made to Petitioner’s 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 the Board received Petitioner’s application on 23 July 2020. 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 reference (b) 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. Sincerely,