RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02886

XXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions discharge be upgraded to Honorable.

APPLICANT CONTENDS THAT:

Due to recent law changes, he is requesting a review for an upgrade of his discharge.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force staff sergeant.

On 31 Mar 87, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force under the provisions of AFR 39-10 Administrative Separations of Airmen, for homosexuality/bisexuality and sexual deviation.  The reasons for the action were as follows:

	a. Between Aug 86 and Jan 87, he engaged in oral sex approximately five times with his roommate; a man.

	b. On or about 24 Feb 87, he solicited another military member to engage in homosexual activity.  He used coercion and/or intimidation to aid in his solicitation of this military subordinate in a social actions alcohol abuse interview, resulting in adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.

	c. On or about 24 Feb 87, he stated to another military member that he was bisexual.

	d. On or about 24 Feb 87, he committed indecent acts and/or assaults upon a military member in the social actions interview noted above, by massaging and hugging him, holding his hand, putting his arm around a shoulder while seated next to him, and by placing his hand on the military member’s leg.

On 23 Mar 87, the Air Force Office of Special Investigations (AFOSI) opened an investigation on the applicant for Violation of Article 134, Uniform Code of Military Justice (UMCJ), for alleged homosexuality. 

On 14 Apr 87, the discharge action was found legally sufficient, and the discharge authority approved the recommendation.

On 02 Jun 87, the applicant received an Under Other Than Honorable Conditions discharge with a narrative reason for separation of “Homosexuality-Acts” and a RE Code of 2B (Involuntarily separated with a general or under other than honorable conditions discharge). 

On 23 Oct 17, AFBCMR staff provided the applicant the Information Bulletin - Upgrade of Discharge – Clemency and information on obtaining an FBI background check with no response from the applicant. (See Exhibit C).

On 20 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 “Don’t Ask, Don’t Tell (DADT).  In a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that Service Discharge Review Boards should normally grant requests to change the narrative reason for discharge (the change should be to “Secretarial Authority”), requests to re-characterize the discharge to honorable, and/or request a change to the RE code to an immediately-eligible-to-reenter category 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.  Although each request must be evaluated on a case-by-case basis, the award of an honorable or general (under honorable conditions) discharge should normally be considered to indicate the absence of aggravating factors.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit D, Exhibit E and Exhibit F.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denying the application.  Although applicant did not address his RE code, his RE code was validated as 2B (Involuntarily separated with a general or under other than honorable conditions discharge) based on his character of service currently being listed as other than honorable conditions.  The guidance to repeal DADT policy states requests to change RE code to 1J (eligible to reenlist, but elects separation) should be granted for members separated under DADT or similar policy that did not involve aggravating factors.  The applicant did have aggravating factors as his commander stated the under other than honorable conditions discharge recommendation was based on the applicant’s inability to comply with the Air Force standards of conduct and the approval authority stated the character of service was appropriate based on his record during the current enlistment.  The complete advisory is at Exhibit D.

AFPC/DP2STM recommends partially granting the applicant’s request to change the narrative reason for separation to “Secretarial Authority” and the corresponding SPD code to “JFF” while maintaining the service characterization as Under Other Than Honorable Conditions.  The applicant’s discharge was properly processed according to applicable regulation at the time and the record indicates that the discharge was based solely on DADT or a similar policy.  However, the record shows that the applicant made homosexual propositions/inappropriate physical acts to a military member while the applicant was in a position of authority conducting a social actions counseling session, which is considered an aggravating factor within the discharge itself.  The complete advisory is at Exhibit E.

AFPC/JA recommends partially granting the applicant’s request to change the narrative reason for separation.  We recommend that the narrative reason for separation on the applicant’s DD Form 214 be updated in accordance with the Under Secretary’s memo of 20 September 2011 to state “Secretarial Authority.”  There is an aggravating factor in the record which would justify denying the applicant’s request to upgrade the service characterization.   The complete advisory is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 25 Jul 18 for comment (Exhibit G), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed; however, it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board, agrees with the recommendations of the Air Force offices of primary responsibility (OPRs) and adopts the rationale expressed as the basis for their decision the applicant has been the victim of or an injustice to warrant changing his narrative reason for separation.  The Board also agrees with the Air Force OPRs that there are aggravating factors in the record and do not believe an upgrade of his discharge or a change to his RE code is warranted.  Therefore, the Board recommends the applicant’s 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 the APPLICANT be corrected to show that his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 02 June 1987 separation, be amended to read in block 26, code “JFF” and block 28, “Secretarial Authority.”

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-02886 in Executive Session on 05 Sep 18:

, Panel Chair
, Panel Member
, Panel Member

The Board voted to correct the record as recommended.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atch, dated 19 Jun 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Letter, SAF/MRBC, w/atch, dated 23 Oct 17.
Exhibit D:	Advisory opinion, AFPC/DP2SSM, dated 21 Jun 18.
Exhibit E:	Advisory opinion, AFPC/DP2STM, dated 21 Jun 18.
Exhibit F:	Advisory opinion, AFPC/JA, dated 13 Jul 18.
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 25 Jul 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2017-02886.