SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1993-00403

XXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to correct his records to void his discharge and allow his retirement as an Air Force captain (O-3).

RESUME OF THE CASE

The applicant is an honorably discharged Air Force captain (O-3).

On 21 Oct 93, the Board considered and denied his request to void his discharge and allow him to retire as a captain, effective 1 Jul 91. The applicant, through counsel, contended he was notified of action against him alleging serious misconduct involving sexual perversion as a result of a civilian conviction for indecent exposure on 3 Nov 89.   A Board of Inquiry (BOI) was convened, and on 14 Nov 90, recommended the applicant receive an honorable discharge.  On 19 Apr 91, the applicant was notified the Air Force had received new information regarding a 7 Aug 90 conviction for indecent exposure, which was material evidence not reasonably available at the time of the initial BOI.  The applicant objected to the addition of the new information and submitted an application for retirement, which was not given consideration.  Subsequently, he received a message, dated 22 May 91, resulting in separation orders discharging him from the Air Force with 19 years, 11 months, and 13 days active duty service.  Counsel further contended the initial error in the processing of the applicant’s case was the inference raised by the government of homosexuality placed on the BOI.  No other officer would have been discharged for conviction of a minor misdemeanor of such a nature without homosexual overtones and innuendo.  Additionally, an egregious injustice was suffered by the applicant when the Secretary of the Air Force (SECAF) considered the new evidence, despite counsel’s objection that this was contrary to prevailing guidance, and absent the information regarding the second conviction, the applicant’s discharge would not have been executed, and he would have been allowed to retire.  The Board found the applicant had provided insufficient evidence of an error or injustice to justify relief, noting at no time did the government attempt to prove the applicant guilty of solicitation or homosexuality to the BOI, the presentation of the new evidence to the SECAF for consideration, in conjunction with the BOI’s recommendation, was appropriate, and there was no evidence the final decision to discharge the applicant was predicated on this additional information.  Finally, the applicant provided no documentation to support the SECAF did not consider his application for retirement.  The applicant was not eligible to retire when the discharge decision was made, and presumably, it was determined the applicant’s overall conduct did not warrant further consideration which would allow him to reach retirement eligibility. 

On 3 Oct 08, the applicant submitted a request for consideration.  Counsel, on behalf of the applicant, contended the applicant was given a discharge under circumstances where other officers would have been punished less severely.  The Air Force intentionally violated procedures promulgated to secure fairness of discharge proceedings to expedite the applicant’s discharge, due in part to evidence that was improperly submitted to the Board of Inquiry suggesting he was homosexual.  This was the result of the Air Force culture that prosecuted members who might be homosexuals more aggressively, and tolerated differing penalties for conduct carrying the stigma of homosexuality and similar conduct that did not.  In the political and social climate at the time of this request for reconsideration, such an outcome would not be tolerated.  While the applicant was not formally charged and dismissed on the grounds of homosexuality, the implication that he was homosexual pervaded and tainted the BOI proceedings.  If the applicant’s case occurred after the passage of Don’t Ask, Don’t Tell, it is likely he would have been discharged under this law and not for conduct that amounted to a misdemeanor conviction for indecent exposure.

On 26 Mar 09, the Board reconsidered and denied his request, finding counsel’s argument was not sufficiently persuasive to warrant a revision of the Board’s earlier determination in this case, and absent compelling evidence to the contrary, remained unconvinced the applicant had been the victim of an error or injustice. 

For an accounting of the applicant’s original request and the rationale of the earlier decisions, see the AFBCMR Letter and Record of Proceedings at Exhibit J. 

On 27 Apr 12, the applicant submitted a request for reconsideration (Exhibit K).  In his request he asked that his honorable discharge be upgraded to a retirement by allowing his reservist time to be credited as total military service.  The additional time would complete the requirement for over 20 years total military service.

On 27 Jul 12, the AFBCMR Executive Director determined the applicant’s request, dated, 27 Apr 12, did not meet the criteria for reconsideration (Exhibit L).

On 10 Jun 21, the applicant requested reconsideration of his request to void his discharge and allow him to retire as an Air Force captain.  He again contends he was a gay man that had been involved in two separate sting operations targeting gay-frequented locations off base, which resulted in his arrest.   This occurred prior to Don’t Ask, Don’t Tell, and today’s standards would have allowed him to be open about his sexuality.  It also probably would not have been allowed to perform sting operations solely based on trapping a gay person.  Both charges in civilian court were misdemeanors and resulted in a $200 fine.  He lost his position, clearance, self-esteem, retirement, and financial goal of retirement income because he chose to lead a life that was somehow different from the norm of the time, environment, majority, or any prejudices.  He carried around the anxiety the military scarred him with for the last 30 years.  Laws are changing within the military and he believes someday the services will make good on the injustices done to so many.  In support of his reconsideration request, the applicant submitted the following new evidence: (1) Letter of Support, Sanford Vet Center Readjustment Counselor, dated 8 Apr 21; (2) Letter of Support, Applicant’s Spouse, dated 10 Jun 21; (3) Rated Disabilities Listing; (4) US Department of Veterans Affairs website banner; and (5) Unsigned Letter of Support, Member of Congress. 

The applicant’s complete submission is at Exhibit M.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  Based on review of the applicant’s request and the master personnel record, there is no error or injustice with the discharge process.  The applicant’s discharge was not the result of the Air Force’s policy of separating individuals based solely on homosexuality.  The applicant’s discharge was for serious misconduct resulting from arrest while in the commission of a sexual offense.  

The complete advisory opinion is at Exhibit O.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Jan 22 for comment (Exhibit P), but has received no response.

APPLICABLE AUTHORITY/GUIDANCE

On 20 Sep 11, with the repeal of the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 U.S.C. § 654, the Department of Defense (DoD) issued supplemental policy guidance on correcting military records of former service members who had been discharged under that law or a precursor.  The guidance applied to the following types of requests:  changing the narrative reason for a discharge; re-characterizing service as honorable; changing a reentry code to one allowing immediate eligibility to reenter service.  The guidance directed that such requests should normally be granted when both of the following conditions are true:  (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) there were no aggravating factors in the record, such as misconduct.   For meritorious cases, the guidance further directed the use of “Secretarial Authority” as the new narrative reason for separation, with Separation Program Designator (SPD) code “JFF” and reentry code “1J.”  Finally, the guidance noted that while each request must be evaluated individually, an honorable or under honorable conditions (general) discharge should normally be considered to indicate the absence of aggravating factors.

The complete DoD policy is at Exhibit Q.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY

The Board sent a copy of the DoD policy to the applicant on 17 Feb 22 for comment (Exhibit R), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.
CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1993-00403 in Executive Session on 6 Apr 22:

, Chair, AFBCMR 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit J:	Addendum to Record of Proceedings, w/Exhibits A-I, dated 30 Apr 09.
Exhibit K:	Application, DD Form 149, w/atchs, dated 27 Apr 12.
Exhibit L:	Letter, SAF/MRBC, 27 Jul 12.
Exhibit M:	Application, DD Form 149, w/atchs, dated 10 Jun 21.
Exhibit N:	Documentary evidence, including relevant excerpts from official records.
Exhibit O:	Advisory Opinion, AFPC/DP2SSR, dated 10 Jan 22. 
Exhibit P:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Jan 22.
Exhibit Q:	DoD Policy on Correcting Military Records after Repeal of DADT, 20 Sep 11.
Exhibit R:	Notification of DoD Policy, SAF/MRBC to applicant, dated 17 Feb 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.