RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-03744

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her under other than honorable conditions discharge be upgraded to honorable, based on the repeal of Title 10, United States Code, Section 654 (10 U.S.C. § 654).

APPLICANT’S CONTENTIONS

It was reported to her chain of command that she is a lesbian.  She was discharged for fraudulent enlistment because she did not report this when she entered the military.  She attempted to join the Air National Guard but was unable due to her service characterization, and she did not think she would be granted an upgrade.

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 23 Apr 81, according to DD Form 1966, Application for Enlistment – Armed Forces of the United States, the applicant initialed the “NO” block on Section IV. Other Background Data, Block 35. Character and Social Adjustment, paragraph f. “Have you ever engaged in homosexual activity (sexual relations with another person of the same sex)?

On 5 Dec 83, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of Air Force Regulation (AFR) 39-10, Administrative Separation of Airmen, paragraphs 5-35a, b, and paragraph 5-15a.  The specific reasons for the action were:

a.	Homosexual activities prior to enlistment
	
	b.  Intentionally withholding information regarding homosexual activities on her DD Form 1966, Application for Enlistment – Armed Forces of the United States.

On 19 Mar 84, the applicant was notified of, and acknowledged, the convening of an administrative discharge board.

On 20-22 Mar 84, an administrative discharge board was convened, and a board of officers recommended the applicant be discharged from service with an under other than honorable conditions service characterization for fraudulent enlistment and homosexuality.

On 19 Apr 84, 3 AF/JA found the administrative discharge proceedings legally sufficient.

On 2 May 84, the discharge authority directed the applicant be discharged, with an under other than honorable conditions service characterization, with a primary reason for discharge of fraudulent enlistment.  

On 14 May 84, the applicant received an under other than honorable conditions discharge.  Her narrative reason for separation is “Defective Enlistments-Fraudulent Entry” and she was not credited with any active service.

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

AIR FORCE EVALUATION

AFPC/JA recommends granting the application, pursuant to the Department of Defense memorandum, dated 20 Sep 11, and the lack of any other misconduct on the part of the applicant.

On 14 May 84, the applicant was separated pursuant to AFR 39-10, with the primary reason of fraudulent enlistment based solely on homosexual acts.  The applicant was notified of her rights to a discharge board, to submit evidence, and to be represented by counsel.  She submitted a conditional waiver of the board contingent upon receipt of a general service characterization.  Her waiver request was denied.  The board found she had engaged in homosexual acts, the conduct was not a departure from her usual and customary behavior, and was likely to reoccur.  Additionally, the conduct was not accomplished by use of force, the member did intend to engage in further homosexual acts, and her continued presence in the Air Force was not consistent with proper discipline, good order, and morale.  The board recommended she be discharged with an under other than honorable conditions service characterization, and the servicing legal office found the discharge package legally sufficient.

The applicant’s request falls squarely within the Under Secretary of Defense post-Don’t Ask, Don’t Tell (DADT) guidance.  She was discharged pursuant to AFR 39-10, Section G, paragraph 5-35b, homosexual acts.  While her separation processing appears to have been conducted in accordance with law and guidance in effect at the time, the discharge resulted solely upon a policy similar to DADT.  Finally, the record did not involve misconduct or other reasons for discharge, and contained no evidence of aggravating factors.

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 5 Apr 22 for comment (Exhibit D), but has received no response.

APPLICABLE AUTHORITY/GUIDANCE

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 E.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY/GUIDANCE

The Board sent a copy of the DoD policy to the applicant on 1 Aug 22 for comment (Exhibit F), but has received no response.

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/JA, and 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, upon upgrade of her service characterization to honorable, the applicant should receive credit for all service performed.  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 APPLICANT be corrected to show the DD Form 214, Certificate of Release from Active Duty, issued on 14 May 1984, be amended to reflect she was discharged with service characterized as honorable, a Separation Code of JFF, a Narrative Reason for Separation of Secretarial Authority, a Reentry code of 1J, and Record of Service recording all service performed.  

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-2021-03744 in Executive Session on 11 Oct 22:

, 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/atch, dated 15 Oct 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/JA, dated 5 Apr 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 5 Apr 22.
Exhibit E:	DoD Policy on Correcting Military Records after Repeal of DADT, 20 Sep 11.
Exhibit F:	Notification of DoD Policy, SAF/MRBC to applicant, dated 1 Aug 22.

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.