RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2015-00651

							COUNSEL:  NONE

							HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty be changed as follows: 

	Block 26, Separation code, and Block 28, Narrative reason for separation to remove any references to his sexuality.

	Block 27, Reentry (RE) code, to show that he is eligible to reenlist.

APPLICANT CONTENDS THAT:

Since his discharge in 1999, he obtained an undergraduate degree, a M.B.A., and has faithfully served his country as a decorated law enforcement officer for 10 years.  His DD Form 214 with references to his sexuality has presented hardships for him.  He is requesting these corrections based on the repeal of the Don’t Ask, Don’t Tell” (DADT).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 16 Dec 98, the applicant entered the Regular Air Force.

On 12 May 99, the applicant and his Area Defense Counsel informed his commander that he was a homosexual.

On 24 May 99, the applicant acknowledged that his commander was recommending him for discharge for Homosexual Conduct In Accordance With (IAW) AFI 36-3208, Administrative Separation of Airmen, Chapter 5, Section G, paragraph 5.36.1.  He waived his right to a hearing.  He did not waive his right to military counsel or the right to submit a statement on his own behalf.

On 24 May 99, the Staff Judge Advocate reviewed the case and found it legally sufficient.

On 2 Jun 99, the discharge authority approved the applicant’s discharge.

On 12 Jun 99, the applicant received an uncharacterized entry level separation and was credited with 5 months and 27 days of active service.

AFI 36-3208, Chapter 1, paragraph 1.19 states in part that 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.

AIR FORCE EVALUATION:

AFPC/DPSOA recommends the Board approve the applicant’s request to change his RE code to “1J,” indicating there is evidence of an injustice.  On 10 Sep 11, the Under Secretary of Defense issued guidance to repeal “DADT” policy.  The guidance stated requests to change the RE code to “1J” should be granted for members separated under “DADT” or similar policy that did not involve aggravating factors.

A thorough search of applicant’s record did not reveal any aggravating factors.  

A complete copy of the AFPC/DPSOA evaluation is at Exhibit C.

AFPC/JA recommends approval of the applicant’s request to change the narrative reason for separation and related separation and RE codes.  The records support the actions taken by the Air Force complied with the law, regulations and applicable policy in effect at the time, pursuant to current DoD policy guidance. Due to the repeal of “DADT” and subsequent guidance, JA concurs with the recommended changes.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation were forwarded to the applicant on 26 Oct 15 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPSOR recommends approval of the applicant’s request to change the narrative reason for separation and corresponding separation code.

On 10 Sep 11, the Under Secretary of Defense issued guidance pertaining to correction of military records 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 below:

“Effective September 20, 2011, Service DRBs should normally grant requests to change the narrative reason for a discharge (the change should be “Secretarial Authority” (Separation program Designator Code (SPD) code JFF), requests 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 regulation, the applicant’s discharge record indicates his discharge was based solely on DADT.  There does not appear to be any additional misconduct or aggravating factors in the record.  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation were forwarded to the applicant on 30 Nov 15 for review and comment within 30 days (Exhibit G).  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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with regard to the applicant’s characterization of service, narrative reason for separation, separation code, and reentry 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.  We also note the applicant served only 5 months and 27 days of active duty and therefore received an uncharacterized entry level separation.  Although AFI 36-3208, states in part that Airmen are in an entry level status during the first 180 days of continuous active military service, the 180-day standard 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 he 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 to the aggravating factors present in cases where this Board has denied a requested Honorable characterization.  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 12 June 1999, he was discharged with service characterized as “Honorable,” a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF,” and a reentry code of “1J.” 

The following members of the Board considered AFBCMR Docket Number BC-2015-00651 in Executive Session on 7 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-2015-00651 was considered:

	Exhibit A.  DD Form 149, dated 11 Feb 15.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOA, dated 20 Aug 15.
	Exhibit D.  Memorandum, AFPC/JA, dated 15 Sep 15.
	Exhibit E.  Letter, SAF/MRBR, dated 26 Oct 15.
	Exhibit F.  Memorandum, AFPC/DPSOR-SEP, dated 23 Nov 15.
	Exhibit G.  Letter, AFBCMR, dated 30 Nov 15.