DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 0008-21 Ref: Signature Date Dear : This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 26 February 2021. The names and votes of the panel members 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 the 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, and applicable statutes, regulations, and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 14 August 2001. On 20 December 2003, you received nonjudicial punishment (NJP) for failure to obey an order by hugging, kissing and fondling the genital area of another male service member. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to homosexual conduct and elected a hearing before an Administrative Discharge Board (ADB). An ADB convened on 13 May 2004 and, by a vote of 3 to 0, determined the preponderance of evidence supported a finding that misconduct occurred. The ADB recommended separation with an other than honorable (OTH) characterization of service. Your commanding officer (CO) forwarded the ADB’s report of findings but recommended retention because hefelt you had “the potential to be a satisfactory sailor” and to be consistent with his recommendation in the case of the other service member. However, the discharge authority concurred with the recommendation of the ADB and directed discharge with an OTH characterization of service by reason of homosexual act. Prior to discharge, on 17 September 2004, you received a second NJP for two periods of unauthorized absence totaling less than ten hours and making three false official statements. On 20 September 2004, you were discharged with an OTH characterization of service. On 20 June 2012, the Naval Discharge Review Board (NDRB) upgraded your characterization of service to general, under honorable conditions (GEN) and changed your narrative reason, separation designator code, and separation authority to reflect “secretarial authority.” The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you deserve an upgrade because the underlying conduct for which you were separated did not happen. Specifically, you contend that you did not hug, kiss, or fondle another male sailor onboard the ship, so you should not have received NJP or been processed for administrative separation. The Board considered the specific contentions you made regarding a “homophobic witness,” witness credibility and different outcomes at two separate ADBs for the same alleged misconduct. The Board further considered your contention that if the same misconduct had been between male and female, it would not have risen to the level of NJP nor would it have been administratively processed or deserving of a GEN characterization. The Board also considered your contention that you admitted to the homosexual conduct in reliance on the CO’s statement to you at NJP that if you would admit to the conduct, like the other sailor had, he would not initiate separation. After finding out that was not true, you appealed the NJP finding, once again proclaiming your innocence and explaining to the appeal authority what happened. Additionally, the Board considered your contention that you were subjected to “disparaging and discriminating remarks and actions by peers” and continuous harassment byyour senior officer, , who routinely called you derogatory names and verbally harassed you about being gay. You further contend made your environment hostile which “took a toll” on you. The Board carefully considered each of the supporting documents you submitted and the documents in your record which detail your harassment complaints. Further, the Board considered your contention that your second NJP occurred when you were dealing with medical issues and needed your medical records so you absented yourself from the ship to retrieve the records, and possibly lied in order to get the records. Lastly, the Board considered your post-service contributions to include your support documentation and your statement regarding the developing stages of your nonprofit for veterans but determined there was insufficient evidence to warrant upgrading your character of service based on clemency. Even applying liberal consideration, the Board determined there was insufficient evidence of an error or injustice to overcome the presumption of regularity in the command’s adjudication of your misconduct at NJP or in the administrative separation processing. The Board specifically noted that an ADB at the time of the misconduct, which had the opportunity to hear witnesses, including yourself, determined the preponderance of evidence supported a finding that you committed the misconduct on the ship. Further, the Board noted your CO recommended retention despite the ADB’s separation recommendation but the discharge authority, after reviewing all the evidence, directed discharge. The Board also noted a congressional response in your record in which the CO stated you were counseled 25 times between 15 March 2002 and 2 September 2003. Even applying liberal consideration, the Board concluded that your misconduct, as evidenced by two NJPs, and your substandard behavior and performance, as evidenced by 25 counseling sessions, were significant negative aspects in the performance of your duties and warranted a GEN characterization of service. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to, your desire to upgrade your discharge and contention that your misconduct did not occur and, but for the DADT policy, would not have been adjudicated at NJP or administratively processed. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct and performance outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. You are entitled to have the Board reconsider its decision upon 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, 3/15/2021 Executive Director