RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02615

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His general (under honorable conditions) discharge be upgraded to honorable and the narrative reason for separation on his DD Form 214, Certificate of Release or Discharge from Active Duty,  be removed based on the repeal of Title 10, United States Code, Section 654 (10 U.S.C. § 654).  

APPLICANT’S CONTENTIONS

With the repeal of the law commonly known as “Don’t Ask, Don’t Tell” (DADT), 10 U.S.C. § 654, the characterization of his discharge is an injustice.  He was recently denied insurance coverage due to his general (under honorable conditions) discharge. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

On 29 Jul 88, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administration Separation of Airmen, Chapter 5, Section G, paragraph 5-35a.  The specific reason for the action is applicant’s non-consensual homosexual act of sodomy (fellatio) upon a fellow airman who was asleep.  

On 2 Aug 88, the applicant via the Area Defense Counsel, submitted a “Discharge under AFR 39-10: Conditional Waiver,” of the rights associated with an administrative discharge board hearing.  This waiver is contingent on his receipt of no less than a general discharge if the recommendation for his discharge is approved.

On 10 Aug 88, the Staff Judge Advocate found the discharge action legally sufficient, recommending the discharge authority direct the applicant be separated with a characterization of general.  Although it is alleged that the homosexual act was by force, this case better portrays a non-consensual act, since the victim was not harmed other than being embarrassed.  Probation and rehabilitation is not authorized where the basis for discharge is homosexuality.  

On 11 Aug 88, the discharge authority directed the applicant be discharged for non-consensual homosexual act of sodomy, with a general service characterization.  This incident of homosexuality was not so egregious as to warrant an under other than honorable conditions discharge (UOTHC).  This single incident of homosexuality is the only derogatory information concerning the applicant.  

On 16 Aug 88, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Homosexuality Acts” and he was credited with 11 months, and 16 days of total active service.

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

APPLICABLE AUTHORITY/GUIDANCE

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.

The complete DoD policy is at Exhibit C.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY/GUIDANCE

The Board sent a copy of the DoD policy to the applicant on 15 Aug 22 for comment (Exhibit D) but has received no response.

AIR FORCE EVALUATION

DAF/JA recommends denying the application.  On 16 Aug 88, the applicant was separated pursuant to AFR 39-10, paragraph 5-35a for engaging in a homosexual act by force and without consent.  It is worth noting that the separation authority stated in his memorandum that the misconduct serving as the basis for the discharge was better portrayed as “non-consensual” homosexual acts rather than homosexual acts committed by force. Consequently, the separation authority characterized the discharge as general (under honorable conditions) rather than a UOTHC discharge.  In his sworn statement provided to law enforcement on 20 May 88, the applicant admits to getting out of his own bed, pulling the covers off his sleeping friend, and initiating fellatio while his friend was still asleep.

On 20 Sep 11, the Under Secretary of Defense (USecDef) issued guidance in concert with the repeal of DADT, 10 U.S.C. § 654.  This guidance stated that requests made by members separated under the DADT policy to change the characterization of service, the separation or reenlistment code, and the narrative reason for separation should be granted.  It also stated that the requests should be granted when no aggravating factors existed in the record (i.e., misconduct) and the original discharge was based solely upon DADT or similar policy.

In this case, the applicant's request falls outside of USecDef post-DADT guidance as he was discharged pursuant to AFR 39-10, Section G, paragraph 5-35a, homosexual acts by force.  While the separation authority opined that the incident did not appear to involve force, the record is clear the applicant engaged in misconduct when he committed this sexual act without the consent of his sleeping acquaintance. Such misconduct, even when viewed through the lens of federal criminal statutes at the time, amounts to criminal sexual abuse, according to H.R.4745 – 99th Congress (1985-1986) Sexual Abuse Act of 1986.  Therefore, as this discharge was based on a non-consensual homosexual act rather than solely on a DADT-like policy with no aggravating factors, the USecDef guidance is not applicable, and the recommendation is the requested relief be denied.  

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 22 for comment (Exhibit F) but has received no response.

The applicant’s complete response is at Exhibit F.

FINDINGS AND CONCLUSION

1.  The application is not timely filed.

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 not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, in this case, the applicant's request falls outside of the 20 Sep 11, Under Secretary of Defense post-DADT policy guidance for changing service characterization, as he was discharged pursuant to AFR 39-10, Section G, paragraph 5-35a, homosexual acts by force (misconduct/aggravating factors).  Therefore, the Board recommends against correcting the applicant’s records.

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 Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-02615 in Executive Session on 20 Oct 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 19 Jun 21.
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 15 Aug 22.
Exhibit E:	Advisory Opinion, DAF/JA, w/atchs, dated 12 Aug 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 17 Aug 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2021-02615, as required by AFI 36-2603, paragraph 4.11.9.