RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02886

XXXXXXXXXX	COUNSEL:	 XXXXXXXXXX	

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, dated 12 Jan 57, be corrected based on the repeal of Section 654 of Title 10, United States Code to reflect:

1.  Character of Service:  From under other than honorable conditions to honorable.

2.  His Reenlistment Eligibility code be updated to reflect “1J” which denotes “Eligible to reenlist, but elects separation.”

3.  Reason and Authority:  From Service Designation Number (SDN) “257” which denotes “Homosexual - Class II” and AFR 35-66, Military Personnel, Discharge of Homosexuals, to “Secretarial Authority” with the corresponding separation code of JFF.

APPLICANT’S CONTENTIONS

His discharge was an unjust because he was discharged solely on the basis of Class II homosexuality.  Under today’s regulations, he would not have been discharged. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman second class.  

According to documentation provided by the applicant, on 13 Dec 56, his commander recommended he be discharged from the Air Force under the provisions of AFR 35-66. 

Per Special Order No.7 dated 9 Jan 57, effective 12 Jan 57, the discharge authority approved the recommendation with an under other than honorably conditions discharge 

According to the DD Form 214, provided by the applicant, on 12 Jan 57, he received an under other than honorable conditions discharge under the provisions of AFR 35-66 with a Service Designation Number of “257.”

According to the DD Form 258AF, provided by the applicant, he was discharged on 12 Jan 57, and furnished an Undesirable Discharge Certificate.

APPLICABLE AUTHORITY

AFR 35-66 classifies Class II cases as those where a member, while serving in the active military service, has willfully engaged in one or more homosexual acts, or has proposed or attempted to perform the act of homosexuality.

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.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY

The Board sent a copy of the DoD policy to the applicant on 20 April 2021 for comment (Exhibit C), but has received no response.

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 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.  Therefore, the Board 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 that on 12 Jan 57, he was honorably discharged, with a narrative reason for separation of “Secretarial Authority,” a separation code of “JFF,” and a Reentry (RE) code of “1J.”
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-2020-02886 in Executive Session on 29 Jun 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 25 Aug 20.
Exhibit B:	DoD Policy on Correcting Military Records after Repeal of DADT, 20 Sep 11.
Exhibit C:	Notification of DoD Policy, SAF/MRBC to applicant, dated 20 Apr 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.