RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01195

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	His “Under Other than Honorable Conditions (UOTHC)” discharge be upgraded to “Honorable.”  In the alternative, his discharge be upgraded to “Under Honorable Conditions (General).”

2.	His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect:

a.	Box 7a, Race, “African American” versus “Negroid.”

b.	Box 11c, Reason and Authority, to read “Secretarial Authority” versus “(SDN XXX) Xth Ind, Hq XX ADiv, 20 Feb 61, to Ltr, XXXXXth Support Sq, 5 Jan 61, AFR 39-17.”  

APPLICANT’S CONTENTIONS

In an 11-page legal brief, the applicant, through counsel, contends the following:

His UOTHC discharge shocks notions of justice because it is disproportionate to typical standards of discipline and largely motivated by racial animus.  If the situations leading to his discharge had occurred today, it would have been handled differently, and given consideration that is more lenient.  Additionally, the current race listed on his DD Form 214 is an incredibly offensive term.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).

According to documentation submitted by the applicant: 

On 19 Dec 60, the applicant was notified by his commander he proposed to take action to have him discharged under the provisions of AFR 39-17, Discharge of Airman because of Unfitness.  His recommendation would be the applicant be given an undesirable discharge. 

On 5 Jan 61, under the provisions of AFR 39-17, the applicant’s commander requested he be considered for elimination from the service with an undesirable discharge, for the following:  

A.	Frequent involvement of a discreditable nature with military authorities.

B.	Evidence of traits of character warranting separation from the service for unfitness because of immoral trends.  

a.	On 7 Jan 59, failed to go at the time prescribed to his appointed place of 
duty.  Reduced to the grade of airman second class (A2C).

b.	 On 9 Feb 59, derelict in the performance of his duties.  Reduced to the grade of airman third class (A3C).  

c.	 Convictions by Courts-Martial:

a.	On 13 Feb 59, Summary Court-Martial, Article 91, failed to obey a lawful order. Confined to hard labor for 30 days and forfeiture of $70.00.

b.	On 23 Aug 60, Summary Court-Martial, Article 92, failed to obey a lawful order.  Restricted to limits of his Air Force Station for 30 days and forfeiture of $25.00.

c.	On 23 Nov 60, Summary Court-Martial, Article 86 and 107, failed to go to his appointed place of duty and did make a false official statement.  Confined to hard labor for 30 days, reduced to airman basic (AB) and forfeiture of $70.00.  

C.	It was his commander’s firm and unequivocal opinion the applicant could not be rehabilitated and his retention in the service would be detrimental to all concerned.  

On 20 Feb 61, the Discharge Authority approved the applicant be furnished an undesirable discharge, and he be separated within 10 days after receipt of the 20 Feb 61 correspondence.  

On 8 Mar 61, the applicant received an UOTHC discharge.  

On 9 Nov 20, AFBCMR notified the applicant his application could not be processed as a viable application and was closing his case.  Upon receipt of his FBI background check, his Birth Certificate, and any additional supportive documents, they will resume actions on his case and restart the processing timeline. (Exhibit C) 

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

POST-SERVICE INFORMATION

On 9 Nov 20, the Board sent the applicant a standard request for post-service information (Exhibit C). This letter informed the applicant that a Federal Bureau of Investigation (FBI) background check and legal proof of the applicant’s name would assist the Board in evaluating his case.  Although the applicant did reply to the request for post-service information (Exhibit D), his response through his counsel, did not include an FBI background check or other criminal history data.  She opined the applicant’s request for correction does not include a finding of clemency, and thus does not require an FBI background check, requesting to reopen the applicant’s entire claim.  

APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 June 2017, paragraph 1.18, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.

•	Abuse of a special position of trust.

•	Disregard by a superior of customary superior - subordinate relationships.

•	Acts or omissions that endanger the security of the United States. 

•	Acts or omissions that endanger the health and welfare of other members of the Air Force.

•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.

•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to correct his race from “Negroid” to “African American” on the DD Form 214.  At the time of the applicant’s discharge in 1961, technicians preparing the DD Form 214 used the racial designation authorized and utilized at that time.  There is no error or injustice warranting a change to the DD Form 214.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 17 Aug 21 for comment (Exhibit F), and the applicant replied on 16 Sep 21.  In his response, through counsel’s 5-page legal brief, the applicant contends the race classification on his DD Form 214 is an injustice.  Counsel reiterates all of the applicant’s DD Form 149 requested relief items, refuting the advisory opinion that the data on the applicant’s DD Form 214 is accurately reflected, in accordance with governing directives at that time.  Counsel opines the Board has the authority to remove an error or injustice from a service member’s record, noting that an injustice “is treatment by the military authorities that shocks the sense of justice, but is not technically illegal.”  Granting relief is intended to ensure fundamental fairness, and that standard is not measured against the metrics of fairness at the time of discharge, but traditional notions of fairness today.  Many beliefs for the civil rights of Black Americans in the 1950s and 1960s are now seen as inappropriate and oppressive; the Board should grant the requested relief based on the changes in the nation’s laws and language the greater realignment society has gone through.  The applicant admits his affair was a youthful mistake, and regrets his actions; however, his discharge is disproportionate to his misconduct.  In support of the response, counsel identifies references of court cases, DoD and AF guidance/instruction, and submitted several articles addressing racism, racial slur terms, and an article written by counsel titled, “No Justice, No Peace: The Military’s Failure To Repair Racial Trauma Of Black Veterans.”   

The applicant’s complete response is at Exhibit G.

FINDINGS AND CONCLUSION

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 non-judicial relief before applying to the Board.

3.	After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of AFPC/DP2SSR against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Race identification is no longer reflected on the DD Form 214, and as the term Negroid could be considered an incredibly offensive term and racist, is sufficient to justify issuing a new DD Form 214 with the term “African American” versus “Negroid.”  While not requested, the Board notes the applicants  DD Form 214, for the period ending 20 Dec 56, contains the  term “Negroid,” therefore, should the applicant submit a new DD Form 149, the Board would be willing to consider his request.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, in the absence of post-service information/criminal history provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the DD Form 214, Certificate of Release or Discharge from Active Duty, for his 8 March 1961, Under Other Than Honorable Conditions discharge, Block 7a, Race to read “African American.”  

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will 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-2020-01195 in Executive Session on 15 Sep 21 and 4 Oct 21:

, 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 29 Jan 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Non-Viable, Post-Service Request and Liberal 
		Consideration Guidance, dated 9 Nov 20.
Exhibit D:	Applicant’s Response, w/atchs, dated 30 Nov 20. 
Exhibit E:	Advisory Opinion, AFPC/DP2SSR, dated 17 Aug 21
Exhibit F:	Notification of Advisory, SAF/MRBC to Counsel, dated 17 Aug 21. 
Exhibit G:	Applicant’s Response, w/atchs, dated 16 Sep 21.   
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-01195, as required by AFI 36-2603, paragraph 4.11.9.