DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 783-19 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 name change, 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 31 March 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. Petitioner began a period of active duty on 20 August 1985. On 5 September 1986, Petitioner went to non-judicial punishment (NJP) for attempted sodomy, indecent acts, and the wrongful solicitation to commit an offense. On 5 September 1986, Petitioner was notified of administrative separation proceedings by reason of: (a) homosexuality by his admission of being a homosexual, and by reason of engaging in, attempting to engage in, and soliciting another to engage in homosexual acts; and (b) misconduct due to the commission of a serious offense. Petitioner waived his rights to consult with counsel, submit a written statement on his own behalf, and present his case to an administrative separation board. Ultimately, on 19 September 1986, the Petitioner was discharged with an other than honorable (OTH) characterization of service with “homosexuality” as the narrative reason for his separation. d. 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 only warrants partial relief. The Board noted Petitioner’s record supports that he was administratively discharged in part due to his homosexuality based on DADT, however, there were aggravating factors involving the misconduct underlying his NJP. 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 narrative reason for separation, separation authority, and separation code is proper at this time. Additionally, the Board noted that Petitioner did not submit any documentation showing that his name was legally changed and concluded the evidence was insufficient to establish the existence of probable material error or injustice in this regard. Notwithstanding the corrective action recommended below, the Board was not willing to upgrade the Petitioner’s discharge characterization or change the reentry/reenlistment code. The Board observed that regardless of the gender of the victim, Petitioner’s misconduct was tantamount to a non-consensual touching of a sexual nature and/or a sexual assault. The Board also noted that the Petitioner was dual-processed for both homosexuality and the commission of a serious offense. Had the Petitioner been processed solely for the commission of a serious offense, that basis alone could have independently resulted in an OTH characterization. Moreover, 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 him an OTH discharge. The Board also noted that there is no credible and convincing evidence in the record to substantiate or corroborate Petitioner’s contentions that the homosexual conduct and misconduct allegations were untrue, that no evidence was presented in his case, and that he was the victim of harassment by fellow shipmates. To the contrary, the record indicates multiple sworn adverse witness statements and NJP testimony, along with Petitioner’s own sworn statement to NCIS and oral NJP testimony admitting the misconduct and allegations against him. In the end, the Board concluded that the Petitioner received the correct discharge characterization and reentry code based on the totality of his circumstances, and that such OTH characterization and RE-4 reentry code was in accordance with all Department of the Navy directives and policy at the time of his discharge. The Board also noted that absent a material error or injustice, the Board generally will not summarily upgrade a discharge or grant other relief solely for the purpose of facilitating VA benefits or enhancing educational or employment opportunities. Lastly, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of years. RECOMMENDATION: In view of the above, the Board directs the following corrective action. That Petitioner’s naval record be 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.” It is further directed that Petitioner be issued a new DD Form 214. That any and all previously existing DD Forms 214 and DD Forms 215, as applicable, 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 3 December 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 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.