RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03221 INDEX CODE: 100.00; 110.00 COUNSEL: XXXXXXXXXXXX HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her under honorable conditions (general) discharge be upgraded to honorable. 2. Her Reenlistment Eligibility (RE) code be changed to one that does not reflect a bar from service. 3. She be issued an honorable discharge certificate. 4. She be issued a new DD Form 214, Armed Forces of the United States Report of Transfer or Discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: Through counsel, the applicant makes the following contentions: Her discharge for homosexuality in 1959 should have been an honorable discharge given the facts of the investigation, her service record, and the recommendation of her commanders. The methods and policies regarding homosexuals serving in the Air Force has changed since 1959, and she would never have been separated or given a general discharge under the current policy. The characterization of her service as “general under honorable conditions” was arbitrary and capricious, depriving her of fundamental due process because there was no evidence upon which to base that characterization. She was told by her commander that she was recommending an honorable discharge because there was no evidence against her and her service was honorable in every way. Her separation was for unsubstantiated accusations of mere association. Under current regulations, this would not provide the basis for a conduct inquiry, let alone a separation. A general discharge failed to reflect the honorable character of her service and the specific recommendation of her commanding officer and her service record. She suffered detriment from the improper and inequitable characterization of her service. Equity, in the facts of her service, changes in law and regulations, and her exemplary post- service record mandates the correction of this injustice. Her post-service record demonstrates by consistency the quality of her performance in the Air Force. There is nothing in her service record that differs from her dedicated service to the community. Her post-service conduct only punctuates the injustice of her discharge characterization. The characterization of her service as “general under honorable conditions” was improper in 1959, and would be improper today. She would be retained under current Department of Defense (DoD) and Air Force regulations. In support of her request, applicant provided copies of her service records, her affidavit, an article from the Omaha World- Herald, and various post-service documents. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 4 May 59, for a period of three years in the grade of airman basic. She served as a medical helper. Her highest grade held was airman third class. On 29 Oct 59, applicant was notified by her commander that she was initiating her discharge from the Air Force under the provisions of AFR 35-66, Discharge of Homosexuals, Class III. The commander recommended an honorable discharge based on her outstanding performance and good work ethic. It was also noted that there was nothing at all to indicate that she had in any way been involved in homosexual activities or been associated with homosexuals while a member of the USAF.” Applicant acknowledged receipt of the notification of discharge and waived her rights to a hearing before a board of officers and submitted statements in her own behalf. On 3 Nov 59, the commander of the technical training school recommended she be discharged under the provisions of AFR 39-16 with an honorable discharge. The base legal office found the case legally sufficient to support separation. On 24 Nov 59, the discharge authority approved the separation and directed an under honorable conditions (general) discharge. On 25 Nov 59, she was discharged under the provisions of AFR 39-16, with a general discharge, after having served for 6 months and 22 days. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSOA recommends denial of a change to the RE code. DPSOA stated had the applicant been discharged under current policy she still would not have been given an RE code that would allow for reenlistment. The complete DPSOA evaluation is at Exhibit B. HQ AFPC/DPSO recommends approval of an upgrade of the discharge. DPSO stated based on the documentation on file and her commander’s recommendation, that they would not be opposed to changing her discharge characterization. The complete DPSOS evaluation, with attachments, is at Exhibit C. HQ AFPC/JA recommends partial relief. JA recommends changing applicant’s discharge from a general to an honorable discharge. However, they do not recommend changing the RE code. The applicant’s discharge should have been based on the quality of her service with an honorable discharge being the default unless her military records warranted a general discharge. There was nothing in her military records which warranted a general discharge and no explanation from the discharge authority as to why he did not grant the recommended honorable discharge. Both her supervisor and her commander recommended an honorable discharge. Her supervisor went so far as to make an additional statement just prior to the discharge authority’s action on the package in which she stated that an honorable discharge characterization was appropriate for the applicant. Despite these honorable discharge recommendations, the discharge authority approved the discharge with a general discharge characterization. There is no explanation in the discharge order or any accompanying paperwork as to why he decided to issue a general discharge instead of an honorable discharge. AFR 39-16, the “unsuitability” discharge regulation in place at the time, stated that individuals discharged for Class III homosexuality should be “furnished an honorable discharge unless his military record warrants the issuance of a general discharge.” AFR 39-16 specifically stated that those discharged as a Class III homosexual were characterized as “unsuitable,” meaning ineligible for military service thus also ineligible to reenlist. Nothing in the almost 50 years since her discharge shows her unsuitability for service has changed. Therefore, JA agrees with DPSOA that the RE code assigned at the time of her discharge (RE-2) should remain unchanged. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 28 Mar 08, copies of the Air Force evaluations were forwarded to applicant’s counsel for review and comment within 30 days. To date, a response has not been received. _________________________________________________________________ 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 warranting partial relief. After careful review of the evidence of record, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt AFPC/JA’s rationale as the basis for our decision that her character of service should be upgraded to honorable. Her request for an RE code that does not reflect a bar from service was considered; however, we agree with AFPC/DPSOA that no change is warranted. Member’s who are discharged or released for unsuitability under current policy would not merit an RE code allowing reenlistment. Her request for a new DD Form 214 shall be administratively accomplished as a matter of course through the correction of her record. Accordingly, we recommend that her records be corrected as indicated 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 25 November 1959, she was honorably discharged and furnished an Honorable Discharge certificate. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2007-03221 in Executive Session on 29 May 08, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2007-03221 was considered: Exhibit A. DD Form 149, dated 28 Aug 07, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSOA, dated 9 Jan 08. Exhibit D. Letter, AFPC/DPSOS, dated 27 Feb 08, w/atchs. Exhibit E. Letter, AFPC/JA, dated 19 Mar 08. Exhibit F. Letter, SAF/MRBR, dated 28 Mar 08. AFBCMR BC-2007-03221 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 25 November 1959, she was honorably discharged and furnished an Honorable Discharge certificate.