RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04578 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: His discharge is in error or unjust because his discharge was based on his status as a bisexual person only and the rights of Gays has now been confirmed in law. He served with honor; therefore, with the appeal of the Don’t Ask, Don’t Tell (DADT) policy (Title 10, United States Code (USC), Section 654) his service characterization should be changed to honorable. In support of his appeal, the applicant provides copies of his discharge documents. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served on active duty from 31 January 1944 through 29 May 1957. The only records available are the applicant’s DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and prior discharge certificates. There is no discharge file or report of investigation. Apparently, the applicant’s records were burnt in the Fire at the National Personnel Records Center and attempts to locate an auxiliary file have been unsuccessful. However, the limited facts and available records indicate the applicant was most likely classified as a “Class II Homosexual” and was referred to a board of officers. This is based on his DD Form 214, dated 29 May 1957, and the stated reason and authority for his discharge: Separation Designation Number 253, Convenience of the Government; and, Air Force Regulation (AFR) 35-66, Discharge for Homosexual Acts or Tendencies. The applicant was discharged effective 29 May 1957 in the grade of master sergeant after serving 12 years, 10 months, and 16 days on active duty. On 20 September 2011, the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 USC 654 was repealed. The Department of Defense subsequently issued guidance indicating that Service Discharge Review Boards (DRB) 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. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/JA recommends approval. JA states that although the applicant’s record is meager, the available documents appear to indicate that the regulations in effect at the time were appropriately followed and the existing evidence supported the actions taken. Notwithstanding the preceding statement, Department of Defense (DoD) policy guidance issued immediately after the repeal of Title 10, USC, Section 654, justifies a reconsideration of those actions. This DoD policy guidance addresses the correction of military records following the repeal of Title 10, USC, Section 654, setting forth supplemental guidance for the Service’s Discharge Review Board (DRB) and the Board of Corrections of Military/Naval Records (BCM/NR) to manage an expected large number of applications arising from the repeal. Additionally, it provides that DRBs should normally grant requests to re-characterize discharges to honorable when both of the following conditions are met: (1) the original discharge was based solely on DADT or similar policy in place prior to enactment of DADT; and, (2) there were no aggravating factors in the record such as misconduct. Although, this specific guidance seems to be directed only to the DRBs, there is nothing precluding the BCMRs from adopting the above parameters in their review when exercising their recognized broader scope of authority and discretion. JA indicates that while the applicant’s records seem to support the conclusion that the actions taken by the Air Force over 55 years ago complied with the law, regulations, and applicable policy, pursuant to the recent DoD policy guidance and after applying the DRBs reviewing parameters, they are of the opinion that the applicant’s request warrants a re-characterization of service; however, they recommend any relief afforded to the applicant be limited to that action. A complete copy of the JA evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 22 March 2012, for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 error or injustice. In light of the repeal of Don’t Ask, Don’t Tell (DADT) and in accordance with the Under Secretary of Defense (Personnel and Readiness) guidance memorandum, Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, dated 20 September 2011, 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. Based on our review of the evidence of record, the applicant’s discharge meets these requirements. Therefore, we recommend the applicant’s record 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 29 May 1957, he was honorably discharged and furnished an Honorable Discharge certificate. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 17 July 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence for AFBCMR Docket Number BC-2011- 04578 was considered: Exhibit A. DD Form 149, dated 1 Nov 11, w/atchs. Exhibit B. Letter, AFPC/JA, dated 16 Mar 12. Exhibit C. Letter, SAF/MRBC, dated 22 Mar 12.