RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03302 XXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His undesirable discharge be upgraded to honorable. 2. He be awarded the Good Conduct Medal (GCM). 3. His reason for separation (Homosexual Conduct) be changed based on new law and policies under “Don’t Ask Don’t Tell (DADT).” ________________________________________________________________ APPLICANT CONTENDS THAT: His pre-service and in-service statements denying homosexuality and in-service negative physical findings were improperly disregarded; and, though he was accused, there was no corroboration of this, which resulted in serious procedural inequities and an undesirable discharge. His records were destroyed by fire which has unfairly hampered his ability to correct these inequities; however, his remaining record reflects factual contradictions; superior test results, devotion to duty and high endorsements as to his character and performance. In support of his appeal, the applicant provides several personal statements; copies of his Certificate of Military Service, dated 21 Oct 53; DD Form 214, Report of Separation from the Armed Forces of the United States, issued in conjunction with his 21 Oct 53 separation; several letters of support from friends and associates; extracts from his Military Personnel Record (MPR); extensive post-service documentation and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 8 Sep 52 for a period of four years. On 3 Jun 53, the applicant was convicted by a Summary Court- Martial for being Absent Without Leave (AWOL). For this offense he was sentenced to confinement at hard labor for 30 days and forfeiture of $25.00. On 21 Oct 53, the applicant was discharged under the provisions of AFR 35-66, by reason of homosexual conduct, with service characterized as undesirable. He was credited with 11 months and 11 days of active duty service, including 63 days of lost time for being AWOL and confinement. The GCM is awarded to enlisted members who have honorably completed three continuous years of active military service subsequent to 26 August 1940, and who are recommended by their commanding officers for exemplary behavior, efficiency, and fidelity. This medal is only awarded to airmen prior to the establishment of the Air Force Good Conduct Medal on 1 Jun 63. In accordance with Executive Order 8809, amended by Executive Order 9323, the Air Force Good Conduct Medal may also be awarded to service members who complete more than one year but less than three years of active federal military service if the GCM has not been previously awarded. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSOR recommends approval to change the applicant’s narrative reason for separation to "Secretarial Authority," SPD code changed to "JFF" and that his character of service should remain the same. DPSOR states that the discharge record reflects the applicant was involved in Homosexual Acts or Tendencies at the time of his discharge. On or about Jun 53, the applicant was adjudged, approved and confined at hard labor for thirty days. The applicant conduct created a rebuttable presumption that he engaged in, had a propensity to engage in, or intended to engage in homosexual acts. DPSOR found that there was insufficient evidence contained within the applicant's military record to confirm the circumstances and facts surrounding his discharge. Absent the documentation, there is a presumption of regularity in which the applicant was afforded due process and the discharge was consistent with procedural and substantive requirements of the discharge regulation. On 10 Sep 11, the Under Secretary of Defense issued guidance pertaining to correction of military records requests resulting from the repeal of Title 10, Section 654, commonly known as DADT: Effective 20 Sep 11, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge (the change should be "Secretarial Authority" (separation code JFF)), requests to re-characterize the discharge to honorable, and/or requests to change the Reentry (RE) code to an immediately-eligible-to-renter category (the new RE code should be lJ) when both of the following conditions are met: (1) the original discharge was based upon 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. Although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors. The applicant’s discharge was prior to the enactment of DADT and a review of his records does indicate aggravating factors, i.e., an additional basis for discharge for misconduct or performance related issues. Although the discharge was properly processed according to the applicable regulation, the applicant’s discharge record indicates his discharge was not based solely on DADT and did involve aggravating factors. The complete DPSOR evaluation is at Exhibit C. AFPC/DPSID recommends denial of the GCM, stating, in part, due to the applicant's 63 days' time lost, the applicant did not meet the standards creditable towards award of the Good Conduct Medal. In accordance with the award criteria the applicant did not complete more than one year but less than three or a total of three years honorable service; therefore, rendering him ineligible for award of the Good Conduct Medal. To grant relief would be contrary to the criteria established by DoDM 1348.33, the Secretary of the Air Force, Chief of Staff, and/or the War Department. After a thorough review of the applicant's official military personnel record, they were unable to verify award of the GCM. Although, the applicant's active duty service dates as annotated on his DD Form 214 are from 8 Sep 52 to 21 Oct 53, he is only credited with 11 months and 11 days of total active duty service. Section 38 Remarks states: 63 days’ time lost. These days lost appear to be due to the applicant being AWOL for 28 days, from l May - 28 May 53, and then subsequently receiving confinement for 35 days, from 29 May 53 to 2 Jul 53; rendering the applicant ineligible for award of the GCM. The complete DPSID evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant notes that there were many extenuating circumstances in his case, but ironically, the records in his favor disappeared in a "fire," while his complete medical records, including the altered ones, remain perfectly intact, readable, and definitive. In further support of his appeal, he provides a copy of certificate for the American Legion and a letter of aircrew training (not totally readable). The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we find no evidence of an error or injustice to warrant upgrading his discharge to honorable or to award the GCM. Therefore we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant states he was discharged for being a homosexual and is requesting relief under the DADT policy. However, in a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that states the 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. We considered upgrading the applicant’s discharge based on the repeal of DADT; however, the evidence reflects that the applicant was convicted by a Summary Court-martial for being AWOL. His punishment consisted of confinement at hard labor for 30 days and forfeiture of $25.00. In view of this we find no basis to recommend granting the applicant’s request to upgrade his discharge to honorable or to award the GCM. In the interest of justice, we also considered upgrading the discharge based on clemency; however, the applicant provides no evidence to persuade us to recommend granting the relief sought on that basis. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting correction of the applicant’s narrative reason for separation. After carefully reviewing this application, we agree with the opinion and recommendation of DPSOR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an injustice. Accordingly, we recommend his records be corrected to the extent 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 21 October 1953, he was discharged by reason of “Secretarial Authority,” with a separation code of “JFF.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03302 in Executive Session on 24 April 2014, under the provisions of AFI 36-2603: , Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 5 Nov 13. Exhibit D. Letter, AFPC/DPSID, dated 13 Jan 14. Exhibit E. Letter, SAF/MRBR, dated 24 Jan 14. Exhibit F. Letter, Applicant, dated 14 Feb 14, w/atchs. 1 2