RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04845 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her undesirable discharge be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: The most current policy set forth by the Department of Defense (DoD) has recognized the valued service of all people regardless of their sexual orientation. When she entered the military her desire was to honorably and faithfully serve her country. However, the policy that was in place during that time frame prevented her from continuing her service. It is her sincere desire that her military records truly reflect that her service to this country was honorable. In support of his request, the applicant provides a personal statement. The applicant's complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 24 Jan 1951, the applicant was discharged under the provisions of AFR 35-66, Discharge of Homosexuals, with an undesirable discharge. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/JA recommends approval of the applicant's request to change her character of service to Honorable. JA states in part that AFR 35-66 provided that "[t]rue, confirmed or habitual homosexuals, irrespective of sex, will not be permitted to serve in the Air Force in any capacity and prompt separation of known homosexuals from the Air Force is mandatory." Paragraph 2b of this regulation classifies homosexuals into three categories. Class II, pertinent to the applicant’s case, includes "those cases wherein true, confirmed, or habitual homosexuals have engaged in one or more homosexual acts, or where evidence supports proposal or attempt to perform an act of homosexuality and which does not fall into the category of Class I [cases accompanied by assault or coercion]." Under the above mentioned regulation, enlisted personnel facing Class II allegations had the option to accept an undesirable discharge or to have their case tried by general courtmartial. The cases were then referred to the Personnel Board which could: (1) accept the signed statement under the recommended conditions; (2) initiate action with a view to trial by general court-martial; or (3) change the classification to Class III, and direct disposition in accordance with the terms of AFR 35- 66. The Personnel Board accepted the applicant's statement and she was subsequently discharged from the service. Although the record is scant, the available documents appear to indicate that the regulations in effect at that time were appropriately followed and the existing evidence supported the actions taken. Notwithstanding the preceding statement, DoD policy guidance issued immediately after the repeal of 10 U.S.C. §654, justifies a reconsideration of those actions. Thus, while the records seem to support the conclusion that the actions taken by the Air Force over 60 years ago complied with the law, regulations and applicable policy, pursuant to the recent DoD policy guidance and after applying the Discharge Review Board’s reviewing parameters, JA is of the opinion that the applicant's request warrants a re-characterization of service. The recommendations to the Personnel Board from the applicant's chain of command support the conclusion that this was a discharge based solely on DADT, or similar policy. Those recommendations also support a finding that the case was devoid of any aggravating factors. The complete JA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 29 Feb 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit C). ________________________________________________________________ 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. After a review of the applicant’s records, we have surmised she was discharged for homosexual conduct. Based on the presumption of regularity in the conduct of government affairs, and in the absence of evidence to the contrary, we must assume that the actions taken to effect the applicant’s discharge were proper and in accordance with applicable policy and statute in effect at that time. Based on the repeal of DADT, the Department of Defense 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. Based on our review of the evidence of record, the applicant’s discharge meets these requirements. Therefore, we recommend 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 reflect that on 24 Jan 1951 she was honorably discharged and furnished an Honorable Discharge certificate. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 25 Sep 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to BC-2011-04845 was considered: Exhibit A. DD Form 149, dated 30 Nov 2011, w/atch. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/JA, dated 24 Feb 2012. Exhibit D. Letter, SAF/MRBR, dated 29 Feb 2012.