RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04775 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His character of service be changed from under other than honorable conditions (UOTHC) to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: The characterization of his discharge is unjust due to the current military regulations which allow military service for homosexuals. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, and his discharge documents. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate that he entered the Regular Air Force on 3 Jan 84. According to documentation provided by the applicant, on 26 Jun 86, he was notified by his commander that he was recommending his discharge from the Air Force for homosexuality. The basis for the proposed action was the applicant demonstrated in his statements, a propensity to engage in homosexual conduct and on two separate occasions, he engaged in homosexual acts. On 26 Jun 86, the applicant acknowledged receipt of the discharge notification and, after consulting with counsel, on 28 Jun 86, waived his right to submit additional matters on his behalf. The applicant’s commander informed the applicant that if evidence substantiated the alleged activities occurred with a subordinate that violated a customary superior/subordinate relationship, or any of the factors listed in Air Force Regulation (AFR) 36-2, Administrative Discharge Procedures, paragraph 3-2d, he could be issued an UOTHC. AFR 36-2, paragraph 3-2d(3) states, “A characterization of under other than honorable conditions discharge may be issued if there is a finding that an officer attempted, solicited, or committed a homosexual act with a subordinate in circumstances that violate customary military superior/subordinate relationship.” On 19 May 87, the applicant received an UOTHC discharge with a narrative reason for separation of “Misconduct, Moral or Professional Dereliction: Homosexual Acts.” He was credited with 3 years, 4 months, and 17 days of total active service. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends changing the applicant’s narrative reason for separation to reflect “Secretarial Authority.” On 20 Sept 11, the law commonly known as “Don’t Ask, Don’t Tell” (DADT), Title 10 U.S.C. § 654 was repealed. The Department of Defense subsequently issued guidance indicating that Service Discharge Review Boards 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. DPSOR recommends his character of service remain unchanged (UOTHC) due to the applicant's failure to meet the standard of the absence of additional aggravating factors. The discharge was properly processed and the applicant’s record indicates other aggravating factors of misconduct perpetrated by the applicant. These additional aggravating factors are indicated by the applicant’s UOTHC service characterization given by the discharge authority. The complete DPSOR evaluation is at Exhibit C. AFPC/JA concurs with DPSOR that the applicant’s narrative reason for separation should be changed to “Secretarial Authority.” JA also concurs that the character of service should remain unchanged due to aggravating factors and the applicant’s case was not based solely on DADT. While the homosexual acts committed by the applicant were consensual on the part of both members, the other person involved in this relationship was an enlisted subordinate of the applicant. This fraternization violated a customary superior/subordinate relationship, which, under the applicable discharge regulation, authorized a UOTHC discharge. The conduct of the applicant, in forming an intimate/sexual relationship with a subordinate enlisted member, clearly constitutes an aggravating factor that should preclude a change in characterization to an honorable or general discharge. Historically, fraternization has been defined as it is today in AFI 36-2909, Professional and Unprofessional Relationships, paragraph 2.2.1, “Fraternization, as defined by the Manual for Courts-Martial, is a personal relationship between an officer and an enlisted member that violates the customary bounds of acceptable behavior in the Air Force and prejudices good order and discipline, discredits the armed services, or operates to the personal disgrace or dishonor of the officer involved. The custom recognizes that officers will not form personal relationships with enlisted members on terms of military equality, whether on or off-duty. Although the custom originated in an all-male military, it is gender neutral. Fraternization can occur between males, between females and between males and females. The complete AFPC/JA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: His commander did not recommend he be discharged with an UOTHC discharge, indicating that his notification letter states that a general discharge is the worst possible discharge that may be approved and that a UOTHC “may” be issued. Additionally, he did not submit his resignation because his command authority predicated his discharge characterization on his willingness to identify other service members who were homosexual or who he suspected may have been homosexual. He did not then and would not now; make accusations against other service members based solely on being rewarded a higher discharge characterization. Furthermore, he was not aware the individuals that he is alleged to have been homosexually involved with were in the Air Force and neither did they know he was in the Air Force. The activity between all parties does not rise to the level of fraternization. Lastly, his record does not support nor does his DD Form 214 indicate, aggravating circumstances/fraternization. His wish is to have the U.S. flag draped over his casket upon his death. The applicant’s complete submission, with attachments, is at Exhibit F. ________________________________________________________________ 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 to warrant changing the applicant’s character of service to honorable. In this respect, we note the Under Secretary of Defense published a memorandum, dated 20 Sep 11, stating Service Discharge Review Boards should normally grant requests to change the narrative reason for discharge, requests to re-characterize the discharge to honorable, and/or requests to change the reentry code when both of the following conditions are met: (1) the original discharge was based solely on Don't Ask, Don't Tell (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. However, as pointed out by AFPC/JA, the conduct of the applicant in forming an intimate/sexual relationship with a subordinate enlisted member clearly constitutes an aggravating factor. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant changing the applicant’s narrative reason for separation. In light of the repeal of DADT, we find it appropriate to change the applicant’s narrative reason for separation to Secretarial Authority, with the corresponding separation code of KFF. Therefore, in the interest of justice, we recommend the applicant's record be corrected to the extent indicated below. 5. 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 the Board's understanding of the issues 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 the APPLICANT be corrected to show that at the time of his 19 May 1987 discharge, the narrative reason for his separation was “Secretarial Authority,” with a Separation Code of “KFF.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-04775 in Executive Session on 28 Aug 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04775 was considered: Exhibit A. DD Form 149, dated 15 Oct 13, w/atchs. Exhibit B. Applicant's Available Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 31 Dec 13, w/atch. Exhibit D. Letter, AFPC/JA, dated 13 Jan 14. Exhibit E. Letter, SAF/MRBR, dated 24 Jan 14.