RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03624 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her Uncharacterized discharge be corrected to Honorable. APPLICANT CONTENDS THAT: The repeal of Don’t Ask, Don’t Tell in 2011 ended any service restrictions related to gay, lesbian and/or bisexual personnel. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Air Force Reserve on 19 Jul 95. On 9 Aug 95, the applicant entered the Regular Air Force. On 14 Aug 95, the applicant requested to be discharged based on the fact she was a homosexual. On 16 Aug 95, the applicant was notified by her commander that he intended to recommend her for discharge for homosexual conduct in accordance with AFI 36-3208, Administrative Separation of Airmen, Chapter 5, Section G, paragraph 5.36.2. On 17 Aug 95, the applicant waived her right to consult counsel and opted not to submit a statement on her behalf. The Assistance Staff Judge Advocate reviewed the case and found it legally sufficient to support her separation. On 18 Aug 95, the discharge authority approved the applicant for an Entry-Level separation. On 22 Aug 95, the applicant was furnished an Uncharacterized discharge, and was credited with 14 days of active service. In according with AFI 36-3208, Administrative Separation of Airmen, Chapter 1, paragraph 1.19. Airmen are in an entry level status during the first 180 days of continuous active military service. If a service-member is in entry level status when initiating a separation action, describe it as an entry level separation unless: a. A service characterization of under other than honorable conditions is authorized under the reason for discharge and is warranted by the circumstances of the case; or b. The Secretary of the Air Force determines, on a case-by- case basis, that characterization as honorable is clearly warranted by unusual circumstances of personal conduct and performance of military duty. Use this characterization if the reason for separation is: a change in military status, for the convenience of the government, for disability or when directed by the SECAF. If directed by the SECAF, characterize separation under this provision as honorable unless an entry level separation is authorized. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C, D and E. AIR FORCE EVALUATION: AFPC/DPSOR recommends partial correction. On 10 Sep 11, the Under Secretary of Defense issued guidance pertaining to correction of military record requests resulting from the repeal of Title 10, Section 654, commonly known as “Don’t Ask, Don’t Tell (DADT)”. An excerpt from the aforementioned guidance is provided: “Effective September 20, 2011, Service DRBs should normally grant requests to change the narrative reason for separation (the change should be “Secretarial Authority” (Separation Program Designator (SPD) code to “JFF”)), request to re-characterize the discharge to honorable, and/or requests to change the reentry code to an immediately-eligible-to-renter category (the new RE code should be “1J”) when both of the following conditions are met: (1) the original discharge was based solely upon 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. Although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. Although the discharge was properly processed according to the applicable regulations at the time, the applicant’s discharge record indicates the discharge was based solely on DADT and did not involve other aggravating factors. They note that in this case, the applicant’s character of service cannot be changed from “Uncharacterized” to “Honorable”. Airmen are given Entry-Level Separations/Uncharacterized service characterization when separation is initiated within the first 180 days of continuous service. The Department of Defense (DoD) determined if a member served less than 180 days continuous active service, it would be unfair to the member and the service to characterize their limited service. Therefore, the Uncharacterized character of service on her DD Form 214 is correct and in accordance with DoD and Air Force instructions. They recommend the Board deny correcting the applicant’s characterization of service based on the DoD guidance above. They recommend the Board approve a correction to the applicant’s narrative reason for separation to reflect “Secretarial Authority” and SPD code to reflect “JFF”. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial, indicating there is no evidence of an error or injustice. The applicant was involuntary discharged after serving only 14 days. She received a reentry (RE) code of “2C” – “Involuntarily separated with an Honorable discharge; or entry level separation without characterization of service”, based on the involuntary discharge with uncharacterized character of service. On 10 Sep 11, the Under Secretary of Defense issued guidance to repeal DADT policy. The guidance states request to change the RE code to “1J” should be granted for members separated under DADT or similar policy that did not involve aggravating factor. A thorough search of the applicant’s record did not reveal any aggravating factors; however, service members who separate with less than 180 days on active duty receive an RE code of “2C”. Based on the applicant’s uncharacterized character of service and Entry-Level separation, they recommend the RE code “2C” remain firm. If the Board decision is to grant relief, they recommend the Board direct the applicant’s RE code be updated to “3K” -- “Reserved for use by HQ AFPC or the AFBCMR when no other reenlistment eligibility code applies or is appropriate” instead of RE code “1J”. A complete copy of the AFPC/DPSOA evaluation is at Exhibit D. AFPC/JA recommends partial grant. They have reviewed the applicant’s request and the advisories from AFPC/DPSOA and AFPC/DPSOR. They concur with their recommendation to change the applicant’s narrative reason for separation and SPD code; while not changing the characterization of service or RE code. A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 6 Mar 15 for review and comment within 30 days (Exhibit F). 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 timely filed. 3. Sufficient relevant evidence of an error or injustice with regard to the applicant’s characterization of service, narrative reason for separation, Separation Program Designator code and Reentry (RE) code. In a memorandum, dated 20 Sep 11, the Under Secretary of Defense (P&R) published guidance that Service Discharge Review Boards should normally grant requests if the following conditions are 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. Based on our review of the evidence of record, the applicant’s discharge meets these requirements. The Board took note of AFPC/DPSOR’s recommendation to deny upgrading her character of service based on being involuntary discharged after only serving 14 days; however, we note that the 180-day standard articulated by AFPC/DPSOR is actually subject to exceptions. In this respect, AFI 36-3208, Chapter 1, paragraph 1.19 (and the definition of entry level separation in A3.5) clearly shows that an honorable character of service for entry level separations is within the Secretary’s discretion and plenary authority to direct. We believe that the facts here support the exercise of that discretion, in that, but for the DADT policy, it is not likely the applicant would have been forced to separate, in the first place, solely because she was a homosexual. Moreover, we note that the P&R guidance seems to presume that an upgrade to Honorable should normally be considered in DADT cases, in absence of aggravating factors. Although the P&R guidance is silent on the effect of an entry level separation, we do not find the entry level separation in this case comparable the the aggravating factors present in cases where this board has denied a requested Honorable characterization. We also note AFPC/DPSOA’s recommendation not to change her RE code; again based on the limited length of service; however, we believe changing the RE code to “3K” which denotes “Secretarial Authority” is appropriate and in keeping with DADT policy and provides the applicant full and fitting relief. Therefore, we recommend the applicant’s record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 22 August 1995 she was issued an Honorable discharge with a separation program designator code of “JFF”, a reentry code of “3K”, narrative reason for separation of “Secretarial Authority” and was furnished an Honorable Discharge certificate. The following members of the Board considered AFBCMR Docket Number BC-2014-03624 in Executive Session on 21 Jul 15 and 27 Jan 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03624 was considered: Exhibit A. DD Form 149, dated 1 Sep 14. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 4 Nov 14. Exhibit D. Memorandum, AFPC/DPSOA, dated 23 Dec 14. Exhibit E. Memorandum, AFPC/JA, dated 12 Jan 15. Exhibit F. Letter, SAF/MRBR, dated 6 Mar 15.