RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01246

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXX
	
	HEARING REQUESTED: NO
	
APPLICANT’S REQUEST

1.  His discharge, Under Other than Honorable Conditions be upgraded to an Honorable discharge.  

2.  Change the Reason and Authority narrative to “Secretarial Authority.”

3.  Change the discharge regulation authority to AFR 39-10 Administrative Separation of Airmen.

4.  Change the Type of Discharge Certificate issued from DD Form 258AF (Undesirable Discharge Certificate) to DD Form 256AF (Honorable Discharge Certificate).

5.  Change the Separation Program Designator (SPD) to “JFF.”

6.  Change the Reentry (RE) Code to “1 – Eligible.”

7.  Change the Date of Separation to 16 Apr 1962 and the Net Service period to 4 years.

APPLICANT’S CONTENTIONS

The 10 Sep 2011 repeal of Title 10, Section 654, commonly known as “Don’t Ask, Don’t’ Tell,” published guidance that Service Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable if the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT, and there was no aggravating factors in the record, such as misconduct.  His discharge in 1960 was based solely on being classified as a “homosexual,” under the provisions of AFR 35-66, Discharge Processing Where Homosexual Acts or Tendencies are Involved (Class II).  There was no misconduct or other reasons for his discharge, and his record contained no evidence of aggravating factors.  Additionally, but for the discriminatory and unjust discharge, he would have served his four-year enlisted term.  Therefore, his record should be corrected to reflect continued service with no discharge until the completion of the entire four-year term for which he enlisted.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

According to documentation submitted by the applicant:
The applicant is a former Air Force airman second class (A/2C).  

On 15 Dec 1959, the Staff Judge Advocate found the evidence legally sufficient to discharge the applicant under the provisions of AFR 35-66 with an Undesirable Discharge because he had committed homosexual acts before and after he came into the service.  

On 31 Dec 1959, the discharge authority approved the application for discharge under the provisions of AFR 39-17, Application For Discharge, and the furnishings of an “Undesirable Discharge.”  

On 24 Feb 1960, the applicant received an Under Other Than Honorable Conditions discharge, credited with one year, ten months, and eight days of active service, to include seven months and twenty-eight days of foreign service. 

APPLICABLE AUTHORITY

On 20 Sep 11, with the repeal of the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 U.S.C. § 654, the Department of Defense (DoD) issued supplemental policy guidance on correcting military records of former service members who had been discharged under that law or a precursor.  The guidance applied to the following types of requests:  changing the narrative reason for a discharge; re-characterizing service as honorable; changing a reentry code to one allowing immediate eligibility to reenter service.  The guidance directed that such requests should normally be granted when both of the following conditions are true:  (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.   For meritorious cases, the guidance further directed the use of “Secretarial Authority” as the new narrative reason for separation, with Separation Program Designator (SPD) code “JFF” and reentry code “1J.”  Finally, the guidance noted that while each request must be evaluated individually, an honorable or under honorable conditions (general) discharge should normally be considered to indicate the absence of aggravating factors.

The complete DoD policy is at Exhibit B.

FINDINGS AND CONCLUSION

1.  The application is not timely, 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 injustice.  While the Board finds no error in the original discharge process, the Board recommends partial relief based on the repeal of 10 U.S.C. § 654.  The absence of aggravating factors in the evidence submitted meets the criteria of the DoD policy on records correction following the repeal of DADT, which is sufficient to justify granting the applicant’s request to upgrade his discharge.   However, for the remainder of the applicant’s request to change the Date of Separation to 16 Apr 1962 and the Net Service period to 4 years; the Board notes the aforementioned DoD policy guidance states the issuance of a discharge under DADT should not by itself be considered to constitute an error or injustice that would invalidate an otherwise proper action taken pursuant to DADT and applicable policy.  Therefore, the Board finds no basis to recommend granting this portion of the applicant’s request, and recommends correcting the applicant’s record as indicated below.  

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show to show that on 24 Feb 60, he was honorably discharged under Discharge Regulation Authority “AFR 39-10 Administrative Separation of Airmen”, issued a narrative Reason for Separation of “Secretarial Authority,” Separation Program Designator (SPD) code of “JFF,” Reentry (RE) Code of “1J,” and furnished an Honorable Discharge certificate. 

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-2020-01246 in Executive Session on 6 Oct 2020:

, 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 21 Nov 2019.
Exhibit B:	DoD Policy on Correcting Military Records after Repeal of DADT,   
		20 Sep2011.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.