RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00026

xxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His uncharacterized, entry level separation (ELS) be upgraded to an honorable discharge and his narrative reason for separation of “Homosexual Admission” be changed, based on the repeal of Section 654 of Title 10, United States Code.

APPLICANT’S CONTENTIONS

Based on the change in policy, he would like his discharge upgraded.

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 22 Mar 99, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.36 for homosexual conduct.

Not dated, the discharge authority approved the recommendation of an ELS.

On 13 Apr 99, the applicant received an “Uncharacterized” ELS after serving 1 month and 27 days of active service. 

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

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 C.

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, paragraph 1.18, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trial by court-martial.  

Entry Level Separation.  Airmen are in entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active military service after a break of more than 92 days of active service.  Determine the member's status by the date of notification; thus, if the member is in entry level status when initiating the separation action, describe it as an entry level separation unless: 

•	A service characterization of under other than honorable conditions is authorized under the reason for discharge and is warranted by the circumstances of the case; or 

•	The Secretary of the Air Force determines, on a case-by-case basis, that characterization as honorable is clearly warranted by unusual circumstances of personal conduct and performance of military duty.

APPLICANT’S REVIEW OF APPLICABLE AUTHORITY

The Board sent a copy of the DoD policy to the applicant on 19 Mar 21 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 “Don’t Ask, Don’t Tell (DADT).  As noted above, 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 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.  Based on the Board’s review of the evidence of record, the applicant’s discharge meets both requirements.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore 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.  

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 his 13 April 1999 discharge, be amended to read “JFF” in Block 26, Separation Code, “IJ” in Block 27, Reentry 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-2021-00026 in Executive Session on 28 Jul 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/atch, dated 217 Nov 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 C:	Notification of DoD Policy, SAF/MRBC to applicant, dated 19 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.