RECORD OF PROCEEDINGS

IN THE MATTER OF				DOCKET NUMBER: BC-2017-03726

XXXXXXXXXXXXX				COUNSEL: XXXXXXXXX

							HEARING: NO 

APPLICANT REQUESTS THAT:

His military records be corrected as follows:

His Under Other than Honorable Conditions discharge (UOTHC) be upgraded to an Honorable Conditions, discharge.  

His narrative reason for separation and separation code be changed to “Secretarial Authority.”

APPLICANT CONTENDS THAT:

He received two Article 15 actions.  The first Article 15 was for being absent without leave (AWOL) when he traveled beyond the 250 mile radius to travel home so see his girlfriend who had been cheating on him.  The second for being AWOL for 30 minutes at the start of work; however, he was at work, and was in the restroom when his supervisor checked on him.  Later, because of his artistic abilities, someone had made a comment about him being a homosexual and an Office of Special Investigation (OSI) investigation was launched.  He explained that while he had been molested as a child he had never been involved in homosexual relationships while he was in the Air Force.  The OSI agent found him to be “passive” and the Air Force used this information to discharge him.    

He was romantically involved with two women while he was in the Air Force.  He has been married to the same woman since 1987.  The investigation was without merit, as there were no allegation, nor proof, of him being a homosexual.  He provided numerous letters of recommendations, and accolades.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force airman basic.  

The National Personnel Records Center indicated the applicant’s records would have been in the area that suffered the most damage in the fire on 12 Jul 73.  

On 15 Mar 63, the applicant was furnished a UOTHC discharge.

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 “Don’t Ask, Don’t Tell” (DADT).  Service Discharge Review Boards (DRB) should normally grant requests to change the narrative reason for a discharge, to re-characterize the discharge as honorable, and/or requests to change the reentry 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.  The change to narrative reason for discharge should be “Secretarial Authority”, with a separation program designator code (SPD) of JFF.  The new reenlistment eligibility (RE) code should be 1J.  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.

A request for post-service information was forwarded to the applicant on 14 Nov 17 for review and comment within 30 days (Exhibit C).  In response, he submitted a letter from his legal counsel (Exhibit F).

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D, G and H.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends partially granting the application.  

Discharge documentation is absent from the record.  Based on the separation code, it is determined the applicant was discharged for homosexuality.  Guidance pertaining to the repeal of “Don’t’ Ask, Don’t Tell” (DADT) indicates requests to change narrative reason for discharge and characterization should be granted when the discharge was based solely on DADT and there were no aggravating factors in the record.  While the applicant’s counsel indicated the applicant did receive two Article 15 actions, without discharge documentation there is not sufficient evidence to determine if there were aggravating factors in the record.  

AFPC/DP2STM recommends the narrative reason for separation be changed to “Secretarial Authority” and the Separation Program Designator/Separation Designation Number (SPD/SDN) be changed to JFF.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Mar 18 for comment (Exhibit E), and the applicant replied on 10 Apr 18.  The applicant’s counsel stated the applicant had not been identified for discharge until after the OSI investigation.  It is clear the discharge was based solely on DADT.  Therefore, to not change the applicant’s characterization contradicts the intent of the repeal of DADT.  The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends granting the application.  

The applicant’s discharge appears to have been based solely on a policy similar to DADT prior to enactment of DADT.  The applicant did have misconduct during his service which resulted in two Article 15 actions, one for leaving the local area during weekend leave, and one for “being AWOL for approximately 30 minutes.”  There is no evidence that either of these Article 15 actions were used as part of the basis for discharge.  As such, the misconduct arguably does not rise to the level of an aggravating factor envisioned in the Under Secretary’s guidance.  The complete advisory is at Exhibit G.

AFLOA/JAJM recommends denying the application.

Regarding the applicant’s non-judicial punishment, the applicant asserts his Article 15 actions had an indirect correlation to an OSI case wherein he was investigated for being a homosexual.  Without access to his human resource records AFLOA is unable to examine or further consider documents related to the applicant’s non-judicial punishment actions.  Ultimately it is the applicant’s burden to show why their record requires correction, and the applicant has failed to provide sufficient evidence of a legal error or injustice.  The complete advisory is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The Board sent a copy of the additional Air Force evaluation to the applicant on 11 Jul 18 for comment (Exhibit I), but has received no response. 

THE BOARD CONCLUDES:

1.  The application was not timely filed, but 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 thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an injustice.  The applicant is requesting his discharge be upgraded based on the repeal of Don’t Ask, Don’t Tell (DADT).  No evidence has been presented which would lead us to believe his discharge was improper or contrary to the directive under which it was affected at the time of his separation.  In a memorandum dated 20 Sep 11, the Under Secretary of Defense published guidance that Service Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable if 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.  While the Board finds no error in the original discharge process, DADT has been repealed, and there are no aggravating factors.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

THE BOARD RECOMMENDS:  

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 15 March 1963, he was honorably discharged, issued a separation program designator code of “JFF”, and a narrative reason for separation of “Secretarial Authority, and a Reentry (RE) code of 1J – Eligible.”

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-2017-03726 in Executive Session on 14 Aug 18:

	, Panel Chair
	, Panel Member
	, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:  Application, DD Form 149, w/atchs, dated 16 Aug 17.
Exhibit B:  Documentary evidence, including relevant excerpts from official records.
Exhibit C:  AFBCMR letter, w/atch, dated 14 Nov 17. 
Exhibit D:  Advisory opinion, AFPC/DP2STM, dated 10 Jan 18.
Exhibit E:  Notification of Advisory, SAF/MRBC to applicant, dated 13 Mar 18.
Exhibit F:  Applicant’s response, dated 10 Apr 18.
Exhibit G:  Advisory opinion, AFPC/JA, dated 18 Jun 18.
Exhibit H:  Advisory opinion, AFLOA/JAJM, dated 26 Jun 18.
Exhibit I:  Notification of Advisory, SAF/MRBC to applicant, dated 11 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.