RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01714

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

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

Her DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be amended to include her social security number.

APPLICANT CONTENDS THAT:

She was forced out of the Air Force due to her Lesbian, Gay, Bisexual, and Transgender (LGBT) status.

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

STATEMENT OF FACTS:

According to the DD Form 214 provided by the applicant, she initially entered the Regular Air Force on 8 Dec 52.  On 11 Mar 55, the applicant received a general discharge under the provisions of AFM 39-12, Separation for Unsuitability, Unfitness or Misconduct; Resignation or Request for Discharge for the Good of the Service; and Procedures for the Rehabilitation Program, Chapter 2, Section B (Discharge for Unfitness).  She was credited with two years, three months, and four days of total active service.

According to the DD Form 257, General Discharge Certificate, provided by the applicant, on 11 Mar 55, she was discharged from the Regular Air Force with a general (under honorable conditions) discharge in the grade of Airman Second Class (A/2C). 

According to the DD Form 257, provided by the applicant, on 17 Aug 55, she was discharged from the Air Force Reserve with a general (under honorable conditions) discharge in the grade of Second Lieutenant (2Lt).

The National Personnel Records Center (NPRC) was unable to produce the applicant’s service records.

According to AFM 39-12, Paragraph 2-15, Conditions for Unfitness, subparagraph b, dated 1 Sep 66, indicates sexual perversion, including but not limited to (1) lewd and lascivious acts, (2) homosexual acts, (3) sodomy, (4) indecent exposure, (5) indecent acts with or assault upon a child, or (6) other indecent acts or offenses, are all bases for discharge.

According to the Air Force Legal Operations Agency, the applicant does not have a court-martial record.

On 20 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 DADT.  An excerpt from the aforementioned guidance is provided below:

“Effective September 20, 2011, Service DRBs(Discharge Review Boards) should normally grant requests to change the narrative reason for a discharge (the change should be to “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.”

AFI 36-3202, Separation Documents, paragraph 2.2.3., dated 22 Nov 05, states the DD Form 214, “Provides separating members with brief, clear records of their active military service at the time they are transferred, released, discharged, or retired.”

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is included at Exhibit C.

AIR FORCE EVALUATION:

Because of a lack of service records and the governing discharge regulation in effect during 1955 are no longer available, AFPC/DP2STM could not make a recommendation on this application.  They were unable to verify the specific basis for discharge because the applicant’s master personnel record contains no information concerning the discharge.  The applicant provided a DD Form 214 which indicates she was discharged on 11 Mar 55 under the provision of Chapter 2, section B of AFM 39-12, Separation for Unsuitability; Misconduct, Personal Abuse of Drugs; Resignation or Request for Discharge for the Good of the Service; and Procedures for the Rehabilitation Program.  It did not further specify which basis applied at discharge.  DP2STM’s efforts to locate the 1955 version from its archives and the Air University archives were unsuccessful.    Consequently, AFPC/DP2STM could not determine a specific basis for discharge or whether or not it was the sole reason for discharge and that there were no other aggravating factors.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant argues that her discharge should be upgraded in light of the Record Correction Memo which directs the Board to “normally grant requests” for discharge upgrades where the original discharge was based solely on homosexual conduct and there are no aggravating factors.  In the alternative, the Board should upgrade based on her post-service achievements which demonstrates the discharge is an injustice.  The applicant was harassed, interrogated, and ultimately expelled from the Air Force based on a predecessor policy to DADT, and her service record contains no aggravating factors counseling against an upgrade.

Counsel mentions a similar case (Exhibit F) where the Board upgraded despite the unavailability of records due to the same 1973 fire that destroyed the applicant’s records.  The facts and circumstances of the similar case demonstrated the veteran was targeted and ousted from the Air Force because he was gay.  It would be entirely unjust for the applicant to receive anything less than the same outcome the Board reached in this similar case.  The applicant’s discharge was based solely because she was a lesbian by a predecessor policy to DADT that actively targeted gay, lesbian, bisexual, and transgender individuals for expulsion from the Air Force.

The destruction of the applicant’s records were outside of her control and cannot be held against her.  The presumption in the Record Correction Memo demands that, unless there is actual evidence that an application fails to meet the Memo’s upgrade criteria, the Board should find in favor of the applicant.  Moreover, the Air Force failed to meet its duty of care to preserve the applicant’s military service records, therefore, the applicant is entitled to the benefit of an inference that the destroyed records demonstrate the ground for her undesirable discharge was “homosexuality,” by operation of the spoliation of evidence doctrine.  

The fact that the applicant was discharged because she is a lesbian does not implicate the “presumption of regularity.”  The applicant does not argue that the Air Force discharged her in violation of its rules and regulations as they existed in 1955; rather, her application seeks to redress the harm done to her because the Air Force acted in accordance with a policy that it has since repudiated.  

The fact the applicant received a discharge upgrade in 1968 from “undesirable” to “general,” demonstrates that the applicant’s record contained no aggravating factors at that time.  Even without the prior successful discharge upgrade, the Board should presume the record contained no aggravating factors in the absence of evidence to the contrary.  Moreover, the mere presence of aggravating factors is not sufficient to merit the denial of a discharge upgrade.  Denial of an upgrade application such as the applicant’s is only appropriate where negative aspects of a service member’s record are so significant as to outweigh the positive aspects of the veteran’s service.  There is no indication of any such negative factors in the applicant’s record.  Therefore, the Board should conclude that there are no aggravating factors or other misconduct on the record that could support the applicant’s current discharge status.

Finally, counsel indicates that based on the totality of the applicant’s life and circumstances, the Board should upgrade her discharge to honorable on the grounds of justice and equity.  Despite having lived with shame, depression, and Post Traumatic Stress Disorder (PTSD) from her discharge over 60 years ago, the applicant has been an outstanding member of her community as a physical therapist and professor.  Upgrading her discharge to honorable would remedy the injustice and inequity she has lived with all this time, give her peace of mind, and give her the honors she deserves at her funeral (Exhibit E).  

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 injustice.  It appears the applicant’s records were more than likely located in the area most heavily damaged by fire in 1973; therefore, the facts surrounding her separation could not be verified.  However, the applicant states she was discharged for being a homosexual and is requesting relief under the DADT repeal policy.  As noted above, the DoD issued policy guidance that Service Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable, 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 we cannot conclusively determine the applicant was discharged for her sexual orientation, based on our review of the facts and circumstances in this case, it is our opinion her discharge more likely than not meets both conditions noted above.  In this respect, we note the applicant was discharged under Air Force Manual 39-12, which includes provisions for the discharge of personnel for homosexual acts during a member’s service.  While this provision of the regulation does include other bases for discharge not related to homosexuality, we believe it is more likely than not the applicant was discharged for her sexual orientation and there were no aggravating factors in the record that could, in and of themselves, form the basis of an adverse discharge.  With respect to the applicant’s request to amend her DD Form 214 to include her social security number, a new DD Form 214 will be issued on the latest form in which the social security number is required.  Therefore, in the interest of justice, we believe it is appropriate to recommend her records be corrected as set forth below.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 11 Mar 55, she was furnished an “Honorable” discharge with a narrative reason for separation of “Secretarial Authority,” and a reentry code of “1J” and was furnished an Honorable Discharge certificate. 

The following members of the Board considered AFBCMR Docket Number BC-2016-01714 in Executive Session on 14 Sep 17 and 6 Dec 17 under the provisions of AFI 36-2603:

				    , Panel Chair
					, Member
				   , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 8 Apr 16, w/atchs.
	Exhibit B.  Email Correspondence, NPRC, dated 29 Jun 16.
	Exhibit C.  Letter, AFPC/DP2STM, dated 5 Oct 17.
	Exhibit D.  Letter, AFBCMR, dated 11 Oct 17.
	Exhibit E.  Letter, Counsel, dated 9 Nov 17.

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 pertaining to AFBCMR Docket Number BC-2016-01714.