RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04408 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His undesirable discharge be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He was charged with being a homosexual. However, being homosexual is no longer a reason to be discharged. He needs his discharge upgraded for veterans’ benefits. In support of his appeal, the applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 16 Feb 60, the applicant contracted his enlistment in the Regular Air Force. On 15 Apr 63, the applicant’s commander notified him that he was recommending his discharge from the Air Force as a Class II homosexual. The specific reason for the discharge action was on or about 28 Mar 63, he engaged in homosexual acts with other service members. His commander advised him of his rights in this matter. On 15 Apr 63, after consulting with legal counsel, the applicant waived his right to a board hearing. In the recommendation for discharge dated 23 Apr 63, the applicant’s commander recommended he be furnished a general discharge based on his exemplary service. On 15 May 63, the discharge authority directed the applicant be furnished an undesirable discharge. On 22 May 63, he was furnished an under other than honorable conditions (UOTHC) discharge and was credited with three years, three months, and seven days of total active service. On 20 Sep 11, the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 USC 654 was repealed. The Department of Defense subsequently issued guidance indicating that Service Discharge Review Boards (DRB) should normally grant requests to change the narrative reason for a discharge, requests to re-characterize the discharge to honorable, and/or requests to change the reentry code when both of the following conditions were met: (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. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 3 Apr 12, a copy of the FBI Investigative Report and a request was for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit D). As of this date no response has been received by this office. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends that his discharge should be upgraded to honorable due to the repeal of the provisions of 10 USC 654, commonly known as “Don’t Ask, Don’t Tell” (DADT). After a thorough review of the evidence of record and the applicant’s complete submission, we are not convinced he has been the victim of an error or injustice. In this respect, we note that while the repeal of DADT provides a basis for correcting the records of certain affected service members, specific criteria must generally be met: (1) the original discharge must have been based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there must be no aggravating factors in the record, such as misconduct. The circumstances of the applicant’s discharge do not meet these criteria. The applicant was furnished an under other than honorable conditions (UOTHC) discharge due to substantiated misconduct on his part. Therefore, the repeal of DADT does not provide an adequate basis for us to recommend granting the requested relief. We also considered upgrading the applicant’s discharge on the basis of clemency; however, in the absence of any information related to the applicant’s activities since leaving the service, we find no basis to grant the requested relief on clemency. In view of the fact that his misconduct formed the basis of his UOTHC discharge, and in the absence of any evidence to that his commander abused his discretionary authority, he was denied rights to which he was entitled, or the discharge was not carried out in accordance with the provisions of the governing regulations, we find no basis to recommend granting the requested relief. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04408 in Executive Session on 5 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Nov 11, w/atch. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFBCMR, dated 3 Apr 12, w/atchs.