RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-05131

.	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

1.  His character of service be corrected to reflect Honorable instead of Under Honorable Conditions (General).

2.  His Separation Program Designator (SPD) code HRA (Homosexual Conduct) be changed.

3.  His Re-enlistment Eligibility (RE) code 2B (Involuntarily separated with a general or under other than honorable conditions discharge) be changed.

APPLICANT CONTENDS THAT:

His records should be changed due to the repeal of Don’t Ask, Don’t Tell.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 20 Jan 87.

From 27 Aug 87 through 14 Sep 87, the applicant received four records of counseling for several instances of misconduct.  These included failure to go to his appointed place of duty, poor attitude and disrespect towards a noncommissioned officer, missed appointments, failure to maintain sufficient funds in his bank account, and poor job performance (the last included driving a government vehicle under the wing of a moving aircraft).

On 21 Dec 87, the applicant’s commander notified him that he was recommending his discharge for homosexual conduct.  The specific reason for the action was the applicant’s admission and written statement of being involved in multiple homosexual acts since entering the Air Force.

On 4 Jan 88, the applicant acknowledged receipt of the action and, after consulting with legal counsel, waived his right to an administrative discharge board; he did elect, however, to submit a statement in his own behalf.  On 7 Jan 89, the applicant withdrew his request to submit a statement.

On 8 Jan 88, the Staff Judge Advocate added a handwritten note to the applicant’s discharge paperwork:  “General discharge is appropriate because of the homosexual activity and separate incidents of minor misconduct.”

On 11 Jan 88, the base legal office reviewed the case and found it legally sufficient to support separation.  On the staff summary sheet that went to the discharge authority, the Chief, Quality Force, noted the applicant’s “misconduct / unwillingness to conform his conduct to the standards expected of a member of the Air Force” warranted separation with a “General discharge.”

On 4 Feb 88, the discharge authority directed the applicant’s discharge from the United States Air Force, with his service characterized as “General.”  The applicant’s discharge was effective 11 Feb 88.  His Certificate of Release or Discharge from Active Duty (DD Form 214) lists his narrative reason for separation as “Homosexuality-Acts,” his SPD code as “HRA,” and his RE code as “2B.”  He received credit for 1 year and 23 days of active duty service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D, E, and F.

On 20 Sep 11, the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 USC 654, was repealed.  The Department of Defense (DOD) subsequently issued guidance indicating that Service Discharge Review Boards (DRBs) 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 RE code.  However, the guidance also imposed two conditions:  (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; (2) there were no aggravating factors in the record, such as misconduct.

AIR FORCE EVALUATION:

AFPC/DPSTM recommends changing the narrative reason for separation to “Secretarial Authority” and the corresponding SPD code to “JFF.”  However, they recommend denying a characterization upgrade due to the other aggravating factors in the applicant’s record.  Based on these infractions during the applicant’s brief military career, they cannot recommend an upgrade of the applicant’s service characterization.  The complete advisory is at Exhibit D.

AFPC/DP2SSM recommends against changing the RE code to 1J.  The governing policy for DADT states requests to change the RE code to 1J--(Eligible to reenlist, but elects separation) should be granted for members separated under DADT or similar policy that did not involve aggravating factors.  AFPC/DP2SSM notes there were aggravating factors identified in the applicant’s record, as noted above by DPSTM.  The complete advisory is at Exhibit E.

AFPC/JA recommends granting full relief.  AFPC/JA restates the DOD policy noted above regarding misconduct in the record, but argues that since the applicant’s misconduct was not a formal basis for discharge, it arguably did not rise to the level of an aggravating factor envisioned in the DOD guidance.  The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 23 Feb 18 for comment (Exhibit G), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an injustice regarding part, but not all, of his request.  In particular, the repeal of 10 USC 654 justifies changing the narrative reason for separation and the separation program designator.  However, the Board concurs with AFPC/DPSTM and AFPC/DP2SSM that upgrading the service characterization and RE code is not appropriate, given the unrelated misconduct in the record.  Regarding the comments of AFPC/JA, the DOD guidance on upgrading service characterization requires both that (1) a discharge be based on 10 USC 654 or similar policy and (2) there be no aggravating factors in the record.  The logical implication of the AFPC/JA interpretation of that guidance would eliminate aggravating factors as a separate element of analysis.  Consider an Airman with misconduct in his record who was discharged under 10 USC 654.  Any misconduct not included in the discharge basis would be subject to the exception urged by AFPC/JA, since it “arguably did not rise to the level of an aggravating factor.”  Thus, the exception would swallow the rule.  Moreover, in this case, the separation authority was aware of the separate misconduct since the Staff Judge Advocate highlighted it in the discharge recommendation.  Therefore, the Board recommends correcting the applicant’s records only to the extent indicated below.

4.  The applicant has not shown that a personal appearance with or without counsel would materially add to the Board’s understanding of the issues.

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 11 February 1988, he was discharged with a narrative reason for separation of “Secretarial Authority” and a separation program designator of “JFF.”

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-05131 in Executive Session on 10 May 18 and 25 Sep 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record in part.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 21 Dec 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, dated 25 Sep 17.
Exhibit D:	Advisory opinion, AFPC/DPSTM, dated 13 Feb 18.
Exhibit E:	Advisory opinion, AFPC/DP2SSM, dated 14 Feb 18.
Exhibit F:	Advisory opinion, AFPC/JA, dated 22 Feb 18.
Exhibit G:	Notification of Advisories, SAF/MRBC to applicant, dated 23 Feb 18.
Exhibit H:	Miscellaneous Document.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.