RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-03238
		
 						COUNSEL:   

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her undesirable discharge be upgraded to honorable. 

Her narrative reason for separation reflect “Secretarial Authority.” 

Her Separation Program Designator (SPD) code be “JFF.”

Her Reentry (RE) code be “1J.”

Correction of other documents in her record referring to the undesirable discharge to reflect under honorable conditions.  
 
She be awarded the National Defense Service Medal (NDSM). (ADMINISTRATIVELY CORRECTED). 

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states she is 82 years old and in declining health.  She is mostly homebound now and seeks to have this injustice remedied before she dies.  She requests her records be corrected to reflect an honorable discharge under “Secretarial Authority” with a SPD code of “JFF’ and RE code of “1J” and she be awarded the NDSM for her honorable service between 1951 and 1952 during the Korean War period.

She enlisted in the Air Force as part of the Women’s Air Force (WAF) program on 10 April 1951 when she was 18 years old.  On 18 September 1952, 17 months after enlisting, she was administratively discharged under AFR 35-66, Discharge Processing Where Homosexual Acts or Tendencies are Involved.   Her service was characterized on her DD Form 214, Report of Separation from the Armed Forces of the United States, as undesirable.  

In 1952, while stationed at Otis AFB, MA she was contacted by a person who identified himself as an Office of Special Investigations (OSI) officer and was asked to spy on other women and to let him know if any of the women in her barracks was a lesbian.  She was called into his office several times.  She advised him that she did not have any knowledge regarding the personal affairs of her peers.  A few weeks later, she was accused of being a homosexual and was told she would be given a bus ticket back to her home in California and issued an undesirable discharge.  

On 18 September 1952, she was separated with an undesirable discharge.  For many years, the stigmatizing discharge prevented her from finding meaningful employment.  The pain and shame of the humiliating episodes haunt her to this day.  

An injustice exists in that the applicant was involuntarily separated with a stigmatizing discharge that was based on mere allegations of homosexual conduct, conduct even if proved true would not constitute misconduct today.  On 11 September 2011, the then existing statutory prohibition against gays and lesbians serving in the United States Armed Forces was repealed by the DADT Repeal Act of 2010.  On 20 September 2011, the Under Secretary of Defense issued a memorandum directing military Discharge Review Boards (DRB) to grant requests to re-characterize DADT discharges to honorable, and to upgrade RE codes to eligible to reenter when the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and there were no aggravating factors in the record, such as misconduct.  She meets the criteria.  Her DD Form 214 specifically cites AFR 35-66 as the authority for her separation which is similar to later policy against homosexuals serving in the military as contained in 10 U.S.C. § 654, commonly known as DADT.  Counsel provides BC-2011-0485 and BC-2012-00510 as precedence in which the Board determined the presumption of regularity in the proper discharge of the applicants as homosexuals but finding an injustice and granted relief because of the repeal of DADT. 

Her records do contain evidence she was convicted by summary court-martial for failing to show for a barracks inspection and that she was disciplined by nonjudicial punishment for one incident of behaving with disrespect to her second lieutenant commander.  However, nothing in the record of these events reflect they were in any way related to homosexual conduct.  The nonsexual, petty infractions cannot support a finding of aggravated homosexual misconduct.  Nor can these two infractions justify a less than honorable discharge once the alleged homosexual misconduct is removed from consideration.

In a letter dated 31 August 2015, counsel provides corrected copies of pages 6 and 7 of the brief and requested they be included in her application.  

In a letter dated 11 April 2016, counsel states that an FBI report was requested on 5 April 2016 and would be provided to the Board as soon as it was received.

In a letter dated 16 May 2016, counsel provides additional evidentiary materials for the Board’s consideration, to include her resume which indicates a Bachelor of Science degree in Professional Studies, from the University of San Francisco, 1983; Graduate Study, Environmental Management, University of San Francisco, 1983 to 1984; and Doctor of Naturopathy, Trinity College of Natural Health, 2001.  She was also continuously employed from 1952 to 2010 and commended by the California Department of Transportation in 1979 for surveying and drafting services.  She is an instrumented rated private pilot and a member of the International Organization of Women Pilots.  The resume includes community and public service from 1985 to 2015 in areas of ending domestic violence, volunteer instruction for English as second language and commendation by a U.S. Senator for contributions to her community.  Counsel provides a list of character references and states she has had no criminal involvement since her discharge. 

Counsel states the applicant was unaware of the existence of the Board and the possibility of seeking relief for upgrade of the discharge until 2014.   

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 10 April 1951.  

According to the AFHQ Form 0-208, Report of Investigation, dated 3 April 1952, the applicant’s WAF squadron commander described two cases of assault among WAF personnel believed to have been provoked by homosexual activities.  A shakedown inspection and search of the rooms provided personal letters.  The texts indicated one individual (not the applicant_ may have abnormal sexual tendencies).  In the applicant’s statement dated 19 March 1952, she denied ever having kissed any WAF in the squadron or acting in any other but a normal way.  The first sergeant who was interviewed on 19 March 1952 stated she had been aware of the rumors in the squadron of possible homosexual activities but had never seen any member of the WAF squadron partaking in any abnormal actions nor had she heard of any incidents involving homosexuality.  

The applicant’s DD Form 230, Service Record, for the period of service 10 April 1951 to 18 September 1952 reflects she was tried by summary court-martial for behaving with disrespect towards her superior officer on 19 March 1952.  The specifics of the summary court-martial are not available; however, the same second lieutenant WAF squadron commander’s name is listed on the DD Form 230 and the ROI.  

According to the AFHQ Form 0-208, dated 30 June 1952, allegations were received that the applicant made homosexual advances toward another WAF which were confirmed in two sworn statements.  A shakedown and inspection of the applicant’s room provided false documents, which indicated she misrepresented herself as an investigator to seek out lesbians.  Another WAF who was also under investigation furnished a sworn statement confessing to acts of sexual deviation with the applicant.  In a sworn statement dated 20 June 1952, the applicant denied entering into any activities of sexual deviation anywhere at any time.  She also denied telling anyone she was a FBI or any other type of investigator looking for lesbians in the Air Force.  

On 14 July 1952, the applicant agreed to accept an undesirable discharge for the good of the service in lieu of further action under the provisions of AFR 35-66.  She acknowledged she understood her separation with an undesirable discharge may deprive of her many rights as a veteran.  

In a letter dated 24 July 1952, the ROI conducted under the provisions of AFR 35-66 for homosexual conduct concerning the applicant and another WAF airman was forwarded to the 564th Air Base Group, Commander, Otis AFB, MA.  

On 26 August 1952, the Director of Military Personnel, Headquarters, USAF, Promotions and Separations Division, Washington, DC approved the recommendation for discharge.    

In a letter dated 8 September 1952, the Secretary of the Air Force Personnel Council (SAFPC) accepted the signed statement submitted by the applicant and directed she be discharged and issued an undesirable discharge certificate.  

According to a memorandum dated 11 September 1952, the applicant received an Article 15 for failure to attend a scheduled stand-by inspection.  The applicant stated to the first sergeant that she did not appear for the inspection as she spent the night at her home and her alarm clock did not wake her.  The applicant was reduced to the grade of Airman Basic (E-1).  

On 18 September 1952 she was discharged with an undesirable discharge and narrative reason for separation of “AFR 35-66.”  She served 1 year, 5 months and 8 days of active duty service. 

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits D and E.

AIR FORCE EVALUATION:

AFPC/DP3SP states no action is required by the Board for award of the NDSM.  The award of the NDSM was verified and the applicant’s records have been corrected.  

A complete copy of the AFPC/DP3SP evaluation is at Exhibit D.
AFPC/DP2STM-SEP recommends the applicant’s service characterization be changed to honorable, the narrative reason for separation be changed to “Secretarial Authority” and the SPD code to “JFF’.  Furthermore, DP3SP recommends the discharge regulation authority for separation be changed from AFR 35-66 to AFR 39-10, Administrative Separation of Airmen.   

Although the discharge was properly processed according to the applicable regulation at the time, based on the presumption of regularity and the regulation authority used to separate the applicant, the discharge appears to have been based solely on DADT or a similar policy.   

On 10 September 2011, the Under Secretary of Defense issued guidance pertaining to correction of military records resulting from the repeal of 10 U.S.C. § 654, commonly known as “Don’t Ask, Don’t Tell (DADT).”  An excerpt from the this guidance states, “Effective September 20, 2011, Service DRBs should normally grant requests to re-characterize the discharge to honorable, and/or requests to change the RE code to an immediately eligible to reenter category 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.”   

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel, on behalf of the applicant, provides a copy of the Federal Bureau of Investigation (FBI) background check dated 1 July 2016 which shows the applicant has no prior arrest data at the FBI.

A complete copy of the applicant’s submission, with attachment, is at Exhibit G.  

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 has been presented to demonstrate the existence of an injustice.  It appears the applicant was discharged for homosexual conduct and that the actions taken to effect the discharge were in accordance with applicable policy and 
statute in effect at the time.  However, the applicant is appealing for relief based on the repeal of 10 U.S.C. § 654, more commonly known as “Don’t Ask, Don’t Tell” (DADT).  Based on the repeal of DADT, the DOD issued policy guidance that service Discharge Review Boards (DRB) should normally grant requests to change the narrative reason for separation to Secretarial Authority and requests to re-characterize the discharge to honorable, and or requests to change the RE code to immediately eligible for reentry when both of 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.  Although each request must be evaluated on a case-by-case basis, the award of an honorable or general (under honorable conditions) discharge should normally be considered to indicate the absence of aggravating factors.  We note the applicant’s record indicates she was tried by summary court-martial for disrespect towards her WAF squadron commander and that she also received an Article 15 for failure to report on-time for an inspection; however, in our assessment these minor disciplinary infractions were not aggravating factors as described in the DOD policy.  We note the specific circumstances of the applicant’s disrespectful behavior toward her WAF squadron commander are not available and while we do not condone the applicant’s behavior, we are persuaded that the ROI depicts a squadron lacking in discipline and adherence to professional standards.  Moreover, the applicant’s own first sergeant stated she was unable to substantiate homosexual misconduct in the squadron although there were rumors.  Additionally, it also appears the Article 15 for failure to report for an inspection was issued after the applicant’s discharge under AFR 35-66 was approved and just seven days prior to her discharge and thus we find it was not an aggravating factor in the discharge.  Furthermore, in light of our broader mandate and after careful consideration of all the facts and the passage of time, it appears the applicant developed into a productive member of society since leaving the service.  In view of the evidence, we believe the continued stigma of her discharge is unduly harsh and no longer serves any useful purpose.   The applicant also requests that other documents in her record referring to the undesirable discharge be corrected to reflect under honorable conditions; however, given the original discharge under AFR 35-66 was consistent with the substantive requirements of the discharge regulation in effect at the time, was within the commander’s discretionary authority and there is no evidence the characterization of the service was contrary to the provisions of the governing regulations in effect we find no reason to change the applicant’s record in its entirety.   In view of the above, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our conclusion the applicant has been the victim of an injustice.  Therefore, in addition to the administrative correction for award of the NDSM, we recommend the applicant’s records be corrected to the extent 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 18 September 1952, she was discharged with a honorable discharge, a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF,” Reenlistment Eligibility (RE) code of “1,” with a separation authority of AFR 39-10, Administrative Separation of Airmen.

The following members of the Board considered AFBCMR Docket Number BC-2015-03238 in Executive Session on 9 August 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 24 July 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 9 March 2016, w/atch.
	Exhibit D.  Memorandum, AFPC/DP3SP, dated 12 June 2016.
	Exhibit E.  Memorandum, AFPC/DP2STM-SEP, dated 20 June 
			  2016.
	Exhibit F.  Letter, AFBCMR, dated 24 June 2016.  
	Exhibit G.  Letter, Counsel, dated 18 July 2016, w/atch. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.