RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-04970
		
   						COUNSEL:  	

						HEARING DESIRED:  NO

APPLICANT REQUESTS:

His General (Under Honorable Conditions) discharge be upgraded to Honorable, his narrative reason for separation be changed to “Secretarial Authority,” and his reentry (RE) code be changed to “1J,” on his DD Form 214, Certificate of Release or Discharge from Active Duty, through counsel.  

APPLICANT CONTENDS:

His discharge was inequitable because he was discharged for the sole reason he admitted to one homosexual act, and he had no other aggravating factors.  His record reflects he received high marks for his service.  He meets the requirement for the requested upgrades based upon the repeal of Title 10 United States Code (USC) Section 654 (Don’t Ask Don’t Tell).  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 25 Jun 62.  

On 1 Feb 65, the applicant’s commander recommended him for discharge as a Class II Homosexual, for committing a “solitary act” while on active duty.  The applicant acknowledged receipt of the notification, his right to legal counsel, and his right to submit statements in his own behalf.  The applicant waived his right to a Board hearing, and a legal review subsequently determined the action was legally sufficient.  

On 18 Mar 64, the applicant received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 86 of the UCMJ by failing to go at the time prescribed to his appointed place of duty.  

On 10 Mar 65, the discharge authority directed the applicant be discharged with a General discharge. 

On 6 Apr 65, the applicant was furnished a general (under honorable conditions) discharge, a separation authority of SDN 257, an RE code of “20” and was credited with 2 years, 9 months, and 12 days of active service.

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

AIR FORCE EVALUATIONS:

AFPC/DP2STM-SEP recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice.  

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 states, “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.”  In contrast to the DRB, the BCMR has a significantly broader scope of review and is authorized to provide much more comprehensive remedies than are available from a DRB.  Upon finding an error or injustice, BCMRs may fashion the remedy they find necessary and appropriate within applicable legal limits.  

The applicant’s discharge was properly processed according to the applicable regulation at the time.  A review of the applicant’s record revealed an Article 15 UCMJ action.  It states that on or about 15 Mar 64, without proper authority, the applicant failed to go at the time prescribed to his appointed place of duty.  Punishment consisted of forfeiture of $30 pay and restriction to the limits of the base for 10 days.  Since this is an act of additional misconduct, our office must apply the standard indicated by the Under Secretary of Defense and recommend disapproval of an upgrade to the service characterization.  Our office does recognize, however, that due to the length of time since discharge, the Board could consider granting the applicant’s request for upgrade to the service characterization based on clemency. 

Recommend disapproval of the applicant’s request to upgrade his discharge to Honorable.  However, recommend the Board approve the applicant’s request to change the SPD/SDN code to “JFF,” the narrative reason for separation to “Secretarial Authority, and the separation authority to “AFR 39-10, Administrative Separation of Airmen.”      

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

AFPC/DP3ST recommends denial of the applicant’s request to change his RE code to “1J” indicating there is no evidence of an error or injustice.  On 10 Sep 11, the Under Secretary of Defense issued guidance to repeal the “Don’t Ask, don’t Tell (DADT)” policy.  The guidance stated requests to change the RE code to 1J should be granted for member’s separated under DADT unless there was misconduct present.  However, when the applicant separated in 1965, the equivalent of RE code 1J was 1--(Eligible) and all members who were ineligible to reenlist received a RE code 2--(Ineligible).  There were no two digit RE codes at that time.  A search of applicant’s records did reveal evidence of misconduct as applicant received an Article 15 for failure to be at his place of duty at the time prescribed.  Although AFPC/DP2STM-SEP recommend some changes per the 10 Sep 11 guidance referenced above, DP2STM did not support the change of applicants character of service to Honorable based on evidence of misconduct in applicant’s records.  As such, recommend the Board not change the applicant’s RE code.  If the Board’s decision is to grant relief, recommend the applicant’s RE code be changed to 1.

A complete copy of the AFPC/DP3ST evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request, the applicant submitted, through counsel, a rebuttal response to the Air Force evaluations.  The rebuttal states that the Article 15 he received was for not reporting to duty.  As a young person he spent a winter evening in Montana drinking with a fellow airmen, and he drank too much.  He reported to duty, boarded the bus that transported the Airmen to their work sight, but got sick on the bus.  He was told to get off the bus.  Therefore, he was punished.  He served honorably for the rest of his term receiving excellent performance ratings.  He has been married for over 30 years and is the father of two children.  He was discharged for a single homosexual act.  Something which has haunted him for 51 years.  Request the Board independently weigh the evidence.  His performance reviews describe him as an excellent Airman, and outweigh the single act which was the basis for his discharge.  

The applicant’s complete response is at Exhibit F. 

THE BOARD CONCLUDES:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The applicant 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 injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal response to the advisory opinion, we believe the applicant is the victim of an error or injustice.  While we note the comments of AFPC/DP2STM-SEP indicating relief should be denied because the applicant also received an Article 15 for failure to go, we believe a preponderance of the evidence substantiates corrective action is warranted.  In this respect, we note the Article 15 was not for a malicious act or repeated disciplinary problems, nor was it for something which would normally have resulted in a separation, rather it appears to be the type of action which would have been used in the 1960s as simple corrective action for an otherwise honorable first-term airmen.  Therefore, applying the broader scope of review cited by USD(P&R) as being inherent in the BCMR’s authority to provide a comprehensive remedy, we do not believe this particular Article 15 raises to the level of an “aggravating factor” which would have prevented the applicant from being honorably discharged had he not been involuntarily separated under a policy similar to DADT.  While no evidence has been presented which would lead us to believe his discharge was improper or contrary to the directive under which it was affected at the time of his separation, in light of the repeal of DADT, the Board believes it would be appropriate to upgrade the applicant’s character of service to Honorable; change his narrative reason for separation to “Secretarial Authority;” change his separation program designator (SPD) to “JFF;” and, change his reentry (RE) code to “1” in accordance with the guidance provided by AFPC/DP3ST.  Therefore, we recommend the applicant’s record be corrected as indicated below.  

THE BOARD RECOMMENDS:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show on 6 April 1965 he received an Honorable discharge with a narrative reason for separation of “Secretarial Authority,” a separation program designator code (SDN) of “JFF,” and a reentry (RE) code of “1.”

The following members of the Board considered AFBCMR Docket Number BC-2015-04970 in Executive Session on 15 Nov 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 was considered:

	Exhibit A.  DD Form 149, dated 19 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2STM-SEP, dated 23 Mar 16.
	Exhibit D.  Memorandum, AFPC/DP3ST, dated 10 May 16.
	Exhibit E.  Letter, SAF/MRBR, dated 14 Jun 16.
	Exhibit F.  Letter, Applicant, dated 21 Jun 16. 

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