RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00786 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded to honorable.

He be credited with 4 months and 12 days of service and allowed to retire with 20 years of service.

APPLICANT CONTENDS THAT:

There was no concrete evidence that he was a homosexual.  The administrative discharge board found him guilty of homosexual activity when there was no activity presented to them.  Military counsel refused to represent him and he had to hire a civilian attorney.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 28 May 70.

On 28 Mar 89, the applicant’s commander initiated administrative discharge proceedings under AFR 39-10, Administrative Separation of Airmen, paragraphs 5-35a (Homosexuality) and 5-49a(4) (Sexual Deviation – Other Indecent Act or Offense), recommending an Under Other Than Honorable Conditions (UOTHC) characterization.  On 21 Apr 89, the commander amended the proceedings and added paragraph 5-48b (Civilian Conviction – Action Tantamount to a Finding of Guilty) as a discharge basis.

On 2 Jun 89, an administrative discharge board found that all three of the discharge basis existed and recommended an UOTHC discharge.

On 15 Aug 89, the discharge authority directed the applicant be discharged for the three alleged basis and given a UOTHC characterization of service.  However, upon further review by the Military Airlift Command legal staff, it was recommended that only so much of the discharge board’s findings that the applicant engaged in a homosexual act (i.e., attempt to engage in or solicit another to engage in a homosexual act) be approved and that the applicant be discharged with a General (Under Honorable Conditions) service characterization.

On 19 Sep 89, the discharge authority approved the new discharge action.  

On 29 Dec 89, the Secretary of the Air Force denied the applicant’s request for lengthy service probation and directed the administrative discharge be executed.

On 12 Jan 90, the applicant was separated with a general (under honorable conditions) discharge, with a narrative reason for separation of “Homosexuality Acts,” issued a separation code of “GRA” (Homosexuality - Acts), and a reentry code (RE) of “2B” (Separated with a general or under-other-than-honorable-conditions (UOTHC) discharge).  He was credited with 19 years, 7 months and 15 days of total active service.   

On 22 Oct 90, the Air Force Discharge Review Board (AFDRB) considered the applicant’s request to upgrade his discharge to honorable and change the narrative reason for discharge and concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and that the applicant was provided full administrative due process.  

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

AIR FORCE EVALUATION:

AFPC/DP2STM-SEP recommends granting the applicant’s request to change his service characterization to “Honorable,” change his narrative reason for separation to reflect “Secretarial Authority” and the corresponding SPD code to reflect “JFF.” indicating there is evidence of an error or injustice.  

On 20 Sep 11, the law commonly known as “Don’t Ask, Don’t Tell” (DADT), Title 10 U.S.C. § 654 was repealed.  The Department of Defense subsequently issued guidance indicating that Service Discharge Review Boards 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.

Although the discharge was properly processed according to the applicable regulation, the applicant’s discharge record indicates the discharge was based solely on DADT and did not involve aggravating factors.  Although initially the commander wanted additional consideration for discharge under paragraph 5-49 (commission of a serious offense-sexual perversion), it was determined that there was not enough compelling evidence in the case file to support it.  In addition, DP2STM did not find any additional aggravating factors or misconduct in applicant’s master personnel record.

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

AFPC/DP2STM-RETIREMENTS recommends denial of the applicant’s request for retirement instead of discharge indicating there is no evidence of an error or an injustice.  According to 10 USC § 8914, the applicant would need to have 20 years of service to be retirement eligible at the time of discharge.  At the time, the applicant was separated for Homosexual Acts with 19 years, 7 months and 15 days and was not eligible for retirement per 10 USC § 8914. 

Title 10 USC § 8914, Twenty to thirty years enlisted members states, “Under regulations to be prescribed by the Secretary of the Air Force, an enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.”

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

AFPC/JA recommends partial approval indicating only so much of the applicant’s request be granted to change the narrative reason for separation to “Secretarial Authority” and the corresponding SPD code be amended to reflect “JFF.”  Although the applicant was notified of three basis for discharge, to include two misconduct basis (Sexual Deviation – Other Indecent Act or Offense and Civilian Conviction – Action Tantamount to a Finding of Guilty), both of which were substantiated by the administrative discharge board, he was ultimately discharged solely for Homosexuality for attempting to engage in or solicit another to engage in a homosexual act.  Therefore, the applicant may satisfy both DADT repeal criteria consistent with the Under Secretary’s guidance, depending on how one views the matter of “aggravating factors in the record.”

It is clear the applicant was arrested by civilian authorities, charged with indecent exposure and, accepted a program of 80 hours of alternative community service and payment of court costs in lieu of further prosecution.  Yet because the misconduct was tied closely to the allegation of homosexuality itself, and because the applicant was ultimately discharged solely utilizing a Homosexuality basis, the Board could reasonably find that the applicant meets both requirements for relief under the DADT policy.  Thus, AFPC/JA concur with AFPC/DP2STM-SEP’s recommendation, in part, to change the applicant’s DD Form 214 as follows:  Narrative Reason to “Secretarial Authority” and SPD code to “JFF.”  Nevertheless, AFPC/JA recommend the Board only consider upgrading the discharge characterization to Honorable if it believes the applicant has successfully shown material error or injustice. 

It was the applicant’s documented off-duty conduct that directly resulted in his arrest by civilian authorities and ultimately his involuntary discharge from the Air Force, not whether he may or may not have truly been homosexual or if he engaged in consensual adult homosexual relationships.

Consistent with the Under Secretary of Defense’s guidance, retroactive corrections of records from applicants discharged under DADT are not warranted.  Although DADT has been repealed, it was the law and reflected the view of Congress during the period it was the law.  Similarly, DoD regulations implementing various aspects of DADT were valid regulations during that same period.  Thus, while DADT’s repeal may be a relevant factor in evaluating an application, the issuance of a discharge under DADT or the taking of an action pursuant to DoD regulations related to a discharge under DADT should not by itself be considered to constitute an error or injustice that would invalidate an otherwise proper action taken pursuant to DADT and applicable DoD policy.  And remedies such as correcting a record to reflect continued service with no discharge, restoration to a previous grade or position, credit for time lost, or an increase from no separation pay to half or full separation pay or from half separation to full separation pay, would not normally be appropriate.

While this Board is not bound by the results of the Discharge Review Board, appropriate consideration should be given to its documented findings and conclusions:

“The applicant’s attempt to engage in or solicit another to engage in a homosexual act was witnessed by two police officers in the performance of their duties.  Moreover, the applicant’s possession of a homosexual magazine at the site of his misconduct corroborates the illicit intent of the applicant’s actions.  The applicant’s explanation for his possession of the magazine and his explanation of his acts at the site were not considered credible by the board and, therefore, did not overcome the presumption of regularity.  The applicant did not persuade the board by a preponderance of the evidence that the Administrative Discharge Board’s determination of this issue should be changed.

The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and that the applicant was provided full administrative due process.”

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

SAFPC recommends partial approval indicating the applicant’s narrative reason should be changed to “Secretarial Authority,” SPD code to JFF, and characterization to honorable.  Additionally, the Board may want to consider whether the decision to deny Lengthy Service Probation (LSP) makes the applicant the victim of injustice.  SAFPC do not find an error in the earlier decision to deny LSP; however, had the applicant been granted LSP, he would have had an opportunity to reach retirement and, given the short period of service needed, he may have been successful in doing so.

The applicant’s current appeal meets the criteria for consideration under repeal of Title 10 USC § 654, commonly referred to as Don’t Ask Don’t Tell.  Requests to re-characterize the discharge to honorable, and/or requests to change the RE code to an immediately eligible to reenter category (the new RE code should be 1J) should only be approved 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 discharge should normally be considered to indicate the absence of aggravating factors.

As noted in the AFPC/JA advisory, although initially notified of three basis for discharge, the reason for the applicant’s discharge was changed solely to a basis of homosexuality.  AFPC/JA points out that in considering the issue of aggravating factors, it is clear the applicant was arrested by civilian authorities, charged with indecent exposure and, after appearing in court, accepted terms that avoided further prosecution.  However, as also noted, the applicant was discharged solely on the basis of homosexuality.  As such, SAFPC tends to agree with the conclusion of AFPC/DP2STM-SEP that the applicant’s characterization of service should be changed to honorable.

A complete copy of the SAFPC evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 19 Dec 16 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.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant changing the applicant’s character of service to honorable and changing the type of separation to retirement.  In this respect, we note the Under Secretary of Defense published a memorandum, dated 20 Sep 11, stating Service Discharge Review Boards should normally grant requests to change the narrative reason for discharge, requests to re-characterize the discharge to honorable, and/or requests to change the reentry code when both of the following conditions are met: (1) the original discharge was based solely on Don't Ask, Don't Tell (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.  However, as pointed out by AFPC/JA, the applicant’s arrest by civilian authorities, charge of indecent exposure and, acceptance of alternative community service and payment of court costs in lieu of further prosecution clearly constitutes an aggravating factor.  Additionally, we note the comments of AFPC/DP2STM-RETIREMENTS indicating at the time of separation, the applicant did not have 20 years of service and was not eligible for retirement per 10 USC § 8914.  Therefore, we agree with the opinions and recommendations of AFPC/DP2STM-RETIREMENTS and AFPC/JA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice with respect to his general (under honorable conditions) characterization of service and separation instead of retirement.  In the absence of persuasive evidence to the contrary, we find no basis to recommend granting this portion of the relief sought in his application.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant changing the applicant’s narrative reason for separation and separation code.  In light of the repeal of DADT, we find it appropriate to change the applicant’s narrative reason for separation to Secretarial Authority, with the corresponding separation code of JFF.  Therefore, we recommend the applicant's record 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 12 Jan 90, he was discharged with a narrative reason for separation of “Secretarial Authority” and a separation code of “JFF.”

The following members of the Board considered AFBCMR Docket Number BC-2016-00786 in Executive Session on 15 Aug 17 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-2016-00786 was considered:

	Exhibit A.  DD Form 149, dated 18 Feb 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2STM, dated 19 May 16.
	Exhibit D.  Memorandum, AFPC/DP2STM, dated 16 Sep 16.
	Exhibit E.  Memorandum, AFPC/JA, dated 28 Sep 16.
	Exhibit F.  Memorandum, SAFPC, dated 19 Dec 16.
	Exhibit G.  Letter, AFBCMR, dated 19 Dec 16.

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.