RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02783 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His general (under honorable conditions) discharge be upgraded to honorable. 2. His Reentry (RE) code of 4H, which denotes “Serving suspended punishment pursuant to Article 15, UCMJ” be changed to 1J, which denotes “Eligible to Reenlist - Elected Separation or Discharge.” 3. His separation code and corresponding narrative reason for separation of HRA, which denotes “Homosexual Conduct (Acts)” be changed to JFF, which denotes “Secretarial Authority.” APPLICANT CONTENDS THAT: The applicant’s counsel presents the following major contentions: The applicant’s discharge was based solely on “Don’t Ask, Don’t Tell (DADT)” and his record contains an absence of aggravating factors. The applicant’s service was “honorable” as emphasized in his Airman Performance Reports, including his recommendations for promotion, his actual promotions, and even by his unit while he was under the care of the Mental Health Clinic. The general discharge characterization does not accurately reflect his record, and it is in the interest of equity and justice to have his discharge record corrected, especially in light of the changes to military policy that have occurred since his discharge. His duty performance and other positive aspects of his conduct significantly outweighed any negative minor incidents. Simply put, were it not for the inequitable policy, he would have been allowed to continue to serve. When one understands that the majority of these minor infractions happened as a result of the inequitable and unjust policy towards “homosexuality,” it only strengthens his request, and shows the strength of his character. It is only right then that his characterization of service be “honorable.” For the foregoing reasons, the applicant respectfully requests the Board grant his requests for the correction of his record. The Board should find it in the interest of justice to consider his untimely application because he submitted his request within three years of the repeal of DADT. In support of his requests, the applicant provides copies of a Brief of Counsel, DD Form 214, Certificate of Release or Discharge from Active Duty; AF Forms 909, Airman Performance Report; Records of Proceedings, and various other documents associated with his requests. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 31 August 1983, the applicant enlisted in the Regular Air Force. On 8 January 1986, his commander notified him he was recommending his discharge from the Air Force under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraphs 5-35 and 5-46. The specific reasons for his action were the applicant admitted he was a homosexual and for minor disciplinary infractions. On 8 January 1986, he acknowledged receipt of the discharge notification and acknowledged that military legal counsel was made available to him. On 16 January 1986, the Staff Judge Advocate (SJA) recommended the commander reject the applicant’s conditional waiver stating a general discharge would accurately characterize his term of service. On 23 January 1986, the applicant’s commander disapproved his request for a conditional waiver and gave him the option of requesting an unconditional waiver or a board hearing. On 29 January 1986, the applicant waived his right to a hearing before an administrative discharge board. In an undated Addendum the SJA recommended the commander discharge the applicant with a general (under honorable conditions) discharge without probation and rehabilitation. On 14 February 1986, the SJA recommended to the Alaskan Air Command (AAC) vice commander that the applicant be separated with a general (under honorable conditions) discharge and that he not be offered probation and rehabilitation. On 28 February 1986, the AAC vice commander directed the applicant be discharged from the Air Force for homosexuality and given a general discharge. Probation and rehabilitation was considered and deemed inappropriate. On 4 March 1986, he was discharged from the Air Force, with service characterized as general. His narrative reason for separation is “Homosexuality - Acts.” He served 2 years, 6 months, and 13 days of total active service. AIR FORCE EVALUATION: AFPC/DPSOR recommends the applicant’s separation code and corresponding narrative reason for separation be changed to “JFF,” Secretarial Authority. However, they do not recommend changing the characterization of his discharge from general to honorable. The applicant’s record revealed he received numerous letters of counseling, two letters of reprimand and an Article 15. This indicates that the discharge was not based solely on DADT since it involved other aggravating factors. On 10 September 2011, the Under Secretary of Defense issued guidance pertaining to correction of military record requests resulting from the repeal of Title 10, § 654, commonly known as DADT. An excerpt from the aforementioned guidance states “Effective September 20, 2011, Service DRBs should normally grant requests to change the narrative reason for a discharge (the change should be ‘Secretarial Authority’ (Separation program Designator Code (SPD) code JFF)), requests to re- characterize the discharge to honorable, and/or requests to change the reentry 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 solely 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 complete DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code to 1J. On 10 September 2011, the Under Secretary of Defense issued guidance to repeal DADT. The guidance stated that requests to change the RE code to 1J should be granted for members separated under DADT or similar policy that did not involve aggravating factors. The applicant's record includes aggravating factors. The applicant received an erroneous RE code of 4H. His correct RE code is 2B, which denotes “Separated with a general or under other than honorable conditions (UOTHC) discharge,” and should have been updated at the time he was approved for a general discharge. AFPC/DPSOY will publish and provide the applicant with a corrected copy of his DD Form 214 to reflect a RE code of 2B, unless otherwise directed by the Board. The complete DPSOA evaluation, with attachment, is at Exhibit D. AFPC/JA recommends approval of the applicant’s requests due to the apparent error in failing to use the appropriate separation authority. The legal review, for the basis for discharge of Homosexuality-Acts and Minor Disciplinary Infractions, recommended routing the package to the AAC vice commander. This was appropriate for a dual-basis case, since that category could be delegated and had been delegated from the AAC commander to the vice commander. However, the decision to discharge solely on the basis of Homosexuality-Acts, could not be delegated to the AAC vice commander. This should have forced routing the discharge package to the AAC commander. Upgrading the service characterization to honorable gives the applicant every benefit of the doubt for the apparent error in separation authority. The applicant’s statements admitting he was homosexual would have forced his discharge for Homosexuality-Acts in that era; however, a different separation authority may have characterized his service as honorable. For the reasons stated above, and pursuant to current DoD policy, JA recommends granting the applicant’s requests. The complete JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel concurs with JA’s recommendation to grant the applicant’s requests. His discharge was without legal authority; therefore, as a matter of law, his discharge was invalid, erroneous and therefore, cannot stand. DPSOR and DPSOA do not address the legal basis of the separation authority. They confuse the issue when they focus on misconduct. The mere presence of minor disciplinary infractions or even misconduct does not equate to “Aggravating Factors” referred in the Under Secretary of Defense memorandum. The applicant’s minor infractions, which occurred as he struggled with a system that resented who he was as a person, would not and did not rise to the level that warranted discharge. If he did not express his homosexuality, he would not have been discharged. Notwithstanding the legal error, the applicant was unjustly discharged under a discriminatory policy against homosexuals. He has some minor infractions, but none that amounted to significant misconduct, none were related to his homosexuality, and certainly none aggravated the sole reason for discharge. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. In light of the repeal of DADT, it would be appropriate to grant the requested relief. In a memorandum, dated 20 September 2011, the Under Secretary of Defense published guidance that Service Discharge Review Boards should normally grant requests to change the narrative reason for discharge, separation code, re-characterize the discharge to Honorable, and/or requests to change the RE code to an immediately-eligible-to-reenter category when 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, it is our opinion that the applicant's discharge meets these requirements. While DPSOR and DPSOA state there were aggravating factors, we note that the sole basis for the applicant’s discharge was his homosexual conduct, which was approved without authority. In view of the foregoing, we agree with the opinion and recommendation of JA and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an error and injustice and relief is appropriate. Accordingly, we recommend the applicant's records be corrected as set forth 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 4 March 1986, he was honorably discharged with a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF” and a Reentry (RE) code of “1J” and was furnished an Honorable Discharge certificate. The following members of the Board considered this application in Executive Session on 12 May 2015, 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 AFBCMR Docket Number BC-2014-02783 was considered: Exhibit A. DD Form 149, dated 2 July 2014, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 21 August 2014. Exhibit D. Letter, AFPC/DPSOA, dated 10 October 2014, w/atchs. Exhibit E. Letter, AFPC/JA, dated 12 March 2015. Exhibit F. Letter, SAF/MRBR, dated 25 March 2015. Exhibit G. Letter, Counsel, dated 24 April 2015.