RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02117 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His undesirable discharge be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: His first enlistment resulted in an honorable discharge. He enlisted a second time in order to serve his country during a time of war, and even received a Good Conduct Medal. He was discharged based on one incident and he never knew who accused him of homosexuality. He was so ashamed of being labeled a homosexual that he never gave his full story to anyone. The most current policy set forth by the Department of Defense (DoD) has changed so he is finally able to ask for an upgrade to his discharge. In support of his request, the applicant provides copies of his DD Form 214, Report of Separation from the Armed Forces of the United States and NA Forms 13038, Certification of Military Service. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant joined the Air Force on 2 Mar 1948 and was honorably discharged on 6 Feb 1950. On 3 Jan 1951 he reenlisted in the Air Force. On 8 Jun 1954, he was discharged under the provisions of AFR 35-66, Discharge of Homosexuals, with an undesirable character of service. 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 B. ________________________________________________________________ AIR FORCE EVALUATION: Although the record is scant, the available evidence indicates that the regulations in effect at that time were appropriately followed, and the actions taken were supported by the evidence. While the applicant's DD Form 214 does not indicate the homosexual classification of which he was accused, the regulations, his statement, and the DD Form 214 indicate this was most likely a Class II homosexual case. In his request for an upgrade in characterization, the applicant stated that at the time he was notified of the discharge, he was too embarrassed to give his side of the story. His DD Form 214 reflects AFR 35-66 as the reason for discharge with an undesirable characterization. It is logical to assume that in 1954, he was classified as a Class II homosexual, and that he signed the statement required by AFR 35-66, agreeing to accept the undesirable discharge for the good of the service. Class II homosexuals included cases where individuals willfully engaged in one or more acts of homosexuality. In Class II cases, individuals were given a choice: they could submit a signed statement where they agreed to accept an undesirable discharge for the good of the service in lieu of further action, or they could refuse to sign and they would then go before a Board. Based on the Board's decision, there were three possible results: they would be retained in the service, discharged with an honorable or general characterization, or discharged with an undesirable characterization. The existing evidence and record supports the conclusion that the actions taken by the Air Force over 60 years ago complied with the law, regulations, and policy in effect at that time. 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 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 and a change to the narrative description. Additionally, the previous discharge characterization, viewed in conjunction with the regulations in effect at that time, indicates a lack of any aggravating factors or other basis for discharge. The complete JA evaluation is at Exhibit B. AFPC/DPSOA states although not requested, their office addresses Reenlistment Eligibility (RE) codes in cases involving separation under Don't Ask, Don't Tell (DADT) or similar policy. On 10 Sep 2011, the Under Secretary of Defense issued guidance to repeal DADT. The guidance stated requests to change the RE code to 1J should be granted for members separated under DADT unless there was misconduct present. However, the guidance for RE codes dated Mar 1954 shows the equivalent of RE code 1J was "1", as there were no two digit RE codes at that time. If it is determined a RE code should have been reflected on his DD Form 214, recommend the board direct his RE code to be reflected as “1.” The complete DPSOA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 30 Aug 2012, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 he was discharged for homosexuality. 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 his records be corrected as indicated below. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to reflect that on 8 Jun 1954 he was honorably discharged under the provisions of AFI 36-3208, paragraph 1.2, “Secretarial Authority” with a separation code of JFF and a reenlistment eligibility (RE) code of “1.” ________________________________________________________________ The following members of the Board considered this application in Executive Session on 11 Dec 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to BC-2012-02117 was considered: Exhibit A. DD Form 149, dated 20 May 2012, w/atchs. Exhibit B. Letter, AFPC/JA, dated 23 Jul 2012. Exhibit B. Letter, AFPC/DPSOA, dated 28 Aug 2012. Exhibit D. Letter, SAF/MRBR, dated 30 Aug 2012. Panel Chair