RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00431

XXXXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

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

1.	Block 24, Character of Service, from “General (Under Honorable Conditions)” to “Honorable.”
2.	Block 28, Narrative Reason for Separation, to remove references to sexual orientation.

APPLICANT’S CONTENTIONS

The Don’t Ask, Don’t Tell policy has been rescinded.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force senior airman (E-4).

On 22 Aug 85, the applicant’s commander recommended the applicant be discharged from the Air Force for homosexuality, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-35b.  The specific reasons for the action were as follows:

a.	On 12 Aug 85, the applicant made a written statement indicating his desire to be discharged from the Air Force on the grounds that he, approximately one year and eight months previously, committed bisexual acts and could not promise it would not happen again.
b.	Memo for Record, dated 1 Aug 85, reflects on 30 Jul 85, the Consolidated Base Personnel Office Separations Unit, notified the Squadron Section Commander, that the applicant sent a letter to his senator asking to be separated from the Air Force because he was overweight and a bisexual.

Documents containing derogatory information not listed in the letter of notification include:

a.	On 2 Jan 85, the applicant’s First Sergeant was notified that the applicant reported for the Noncommissioned Officer (NCO) Preparatory Course while not in compliance with AFR 35-11, Air Force Physical Fitness Program.
b.	On 2 Jan 85, the applicant was issued an Air Force Weight Standards memorandum, notifying him of his non-compliance with AFR 35-11.
c.	On 22 Jan 85, a DD Form 139, Pay Adjustment Authorization, was issued to collect $35.00 from the applicant for unpaid Noncommissioned Officer (NCO) Club charges.
d.	On 4 Feb 85, the applicant was issued an Air Force Weight Standards memorandum, notifying him of his non-compliance with AFR 35-11.
e.	On 26 Mar 85, the applicant was issued a Letter of Admonishment for, receiving a traffic citation for a traffic violation, to wit:  Speeding 40 miles per hour (mph) in a 25 mph zone.
f.	On 26 Mar 85, the applicant was issued an ATC Form 18, Record of Individual Counseling, for appearing in military uniform with a growth of beard judged unacceptable based on the standards of grooming set forth in AFR 35-10.
g.	On 12 Jun 85, the applicant was issued an ATC Form 18, for allowing his Airman’s Club bill to go delinquent without payment.
h.	On 26 Jun 85, the applicant was issued a Letter of Reprimand (LOR) for failing to appear at the time prescribed for his duty in violation of Article 85, Uniform Code of Military Justice.
i.	On 26 Jun 85, the applicant was notified by AF Form 1058, Unfavorable Information File (UIF) Action under AFR 35-32, that the LOR, dated 26 Jun 85, would be filed in his UIF.
j.	On 1 Jul 85, the applicant was notified by memorandum that his dishonored check in the amount of $60.00 was returned on 17 Jun 85, and his check cashing privileges were suspended for six months.

On 22 Aug 85, the applicant offered a conditional waiver of his rights associated with an administrative discharge board hearing contingent on his receipt of no less than a General (Under Honorable Conditions) discharge.

On 23 Aug 85, the applicant’s Base Commander recommended the conditional waiver be accepted.

On 23 Aug 85, the discharge was found legally sufficient, and the discharge authority accepted the conditional waiver, directing the discharge of the applicant with a General (Under Honorable Conditions) discharge.

On 28 Aug 85, the applicant was furnished a General (Under Honorable Conditions) discharge, with Narrative Reason for Separation of “Admitted Homosexual or Bisexual and Separation Code HRB (Homosexual Conduct – Statement), and was credited with 3 years, 8 months and 14 days active service. 

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

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 C.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY

The Board sent a copy of the DoD policy to the applicant on 1 Jul 21 for comment (Exhibit D) 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 partial relief based on the repeal of 10 U.S.C. § 654.  While the applicant’s circumstances did not meet the criteria of the DoD policy on records correction, due to misconduct, the Board finds the repeal of 10 U.S.C. 654 does justify a change in the Narrative Reason for Separation and Separation Code.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board finds no basis to recommend granting that portion of the applicant’s request.  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 the DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 28 August 1985 discharge, be amended to read “JFF” in Block 26, Separation Code, and “Secretarial Authority” in Block 28, Narrative Reason for Separation.

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-2021-00431 in Executive Session on 6 Apr 22:

, Chair, AFBCMR 
, 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 13 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	DoD Policy on Correcting Military Records after Repeal of DADT, 20 Sep 11.
Exhibit D:	Notification of DoD Policy, SAF/MRBC to applicant, dated 1 Jul 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.