RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02180

XXXXXXXXXXXXXXX	COUNSEL: XXXXXXXX
	
			HEARING REQUESTED: YES

APPLICANT’S REQUEST

Change the DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with the 2 Nov 00 discharge to reflect Narrative Reason of “Hardship” vs “Homosexual Admission” and modify the remarks section to reflect “completion” of full term of service vs “not completed”.

APPLICANT’S CONTENTIONS

The applicant was involuntarily discharged under Don’t Ask, Don’t Tell (DADT) policy before completing the first term of service and after admitting to being a homosexual. This resulted in hardships of:  Being required to lie to friends and fellow airmen about sexual orientation; discharged for the reason of sexual orientation; branded with the stigma of being discharged for that reason; and denied access to occupational opportunities and Department of Veterans Affairs (DVA) education benefits. Had it not been for the DADT policy, since rescinded, none of these hardships would have occurred and the applicant would have fulfilled the three year obligation for DVA education benefits. The only way to secure relief is through the AFBCMR as the DVA lacks the authority to alter any findings of the military department.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman first class.

On 25 Aug 99, according to DD Form 4, Enlistment/Reenlistment Document, the applicant enlisted onto active duty for a period of 6 years.

On 8 Sep 99, according to DD Form 2366, Montgomery GI Bill Act of 1984, the applicant established participation in the Montgomery GI Bill program.

On 2 Nov 00, according to the applicant’s DD Form 214, the applicant was discharged for homosexual admission and credited with 1 year, 2 months and 8 days of active service.

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

APPLICABLE AUTHORITY

On 20 Sep 11, with the repeal of the law commonly known as 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. Although the Board for Correction of Military Records (BCMR) have wide latitude in determining what constitutes an error or injustice, it is DoD policy that broad, retroactive corrections of records from applicants discharged under DADT are not warranted.

The complete DoD policy is at Exhibits E and F.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends partially granting the applicant’s request to change the narrative reason, SPD code and Reenlistment Eligibility (RE) code based on the repeal of DADT.  The Secretary of Defense memorandum clearly outlines what should be input once it has been determined that an individual was discharged solely based on homosexuality. The applicant will receive “Secretarial Authority” narrative reason and SPD code and a “1J” RE code.  Hardship is not an option as a narrative reason and will not be provided to the applicant.  Furthermore, in accordance with Air Force Instruction 36-2606, Reenlistments, expiration of term of service is defined as the “date and individual’s enlistment, reenlistment, or extension of enlistment has expired”.  The applicant was still on the initial enlistment contract when discharged from the Air Force, therefore the applicant did not complete first full term of service.  It is unknown if the applicant would have completed the first full term of service since discharge could have happened for other reasons or by voluntarily request for early separation.  AFPC/DP2SSR is unable to go back and grant any additional service time that was not actually completed by the applicant.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 16 Dec 20 for comment (Exhibit D), and the applicant replied on 15 Jan 21.  Through counsel, the applicant contended that while the advisory opinion recommends partially granting the requested relief, it insinuates the applicant was just as likely to have done something wrong to cause an early discharge from the Air Force.  The applicant had an exemplary service record and there is no evidence to suggest the applicant would not have completed the first full term of service were it not for the discriminatory DADT policy at the time.  The applicant enlisted in the military on the premise that it created a path toward a decent living and later would allow access to affordable education.  Since being discharged, the applicant has had limited access to financial resources and lives at or below the poverty line.  A correction to the narrative reason to “hardship” and modification to the remarks section to indicate dates of eligibility for benefits from the date of the corrected record, would restore justice and enable the applicant to access educational benefits for which the applicant would have been eligible had the applicant not experienced the hardship via DADT. 

The applicant’s complete response is at Exhibit F.

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 injustice.  The Board concurs with the rationale and recommendation of AFPC/DP3SP and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  While the Board finds no error in the original discharge process, the Board recommends relief based on the repeal of 10 U.S.C. § 654.  The absence of aggravating factors in the applicant’s record meets the criteria of the DoD policy on records correction following the repeal of DADT.  Additionally, the Board is bound by the same policy in that broad, retroactive corrections of records from applicants discharged under DADT are not warranted and consequently, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice. 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, issued in conjunction with the 2 Nov 00 discharge, be declared void, a new DD Form 214 be issued to reflect a Narrative Reason for Separation of “Secretarial Authority,” Separation Program Designator (SPD) code of “JFF,” and Reentry (RE) Code of 1J – “Eligible,” and no entries be made on the reissued DD Form 214 indicating the changes or the DD Form 214 was administratively reissued.

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-2020-02180 in Executive Session on 30 Mar 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 26 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 27 Aug 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 16 Dec 20.
Exhibit E:	Notification of DoD Policy on Repeal of DADT, dated 16 Dec 20.
Exhibit F:	Applicant’s response, dated 15 Jan 21.
Exhibit G:	Notification of DoD Policy on Repeal of DADT, dated 29 Mar 21.

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.

							_________________________________
							Board Operations Manager, AFBCMR