RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00180

XXXXXXXXXX	COUNSEL: XXXXXXXXXXX
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His discharge Under Honorable Conditions (General) be upgraded to an Honorable discharge, based on the repeal of Section 654 of Title 10, United States Code, and Reason and Authority be changed from “SDN 257, AFR 39-17, and 1st Ind HQ 15AF 18 Feb 65 to LTD 93HSH, 15 Dec 64 Discharge UP AFR 35-66” to “Secretarial Authority.”

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended he experienced great stress and fear during his service that his peers and superiors would discover his homosexuality.  This stress and fear resulted in his substantial mental and physical health difficulties.  In Mar 64, while off duty, the applicant attempted suicide and was hospitalized for six days.  Despite his great emotional instability and periods of acute anxiety and depression, according to his physician’s observations in his medical records, the applicant continued to serve honorably without incident.  Nevertheless, the applicant was later deemed unfit to serve in the Air Force and discharged “Under Honorable Conditions” for “class II homosexuality.”  His DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, reflects this characterization and lists the corresponding military regulations and guidance regarding this now outdated homosexuality policy as the only reason and authority for his discharge.  Even as his discharge action was pending, the applicant continued to perform his military duties to the best of his ability and without complaint, and his superiors recognized as much.

Further, counsel contended on behalf of the applicant, it has been 55 years since the applicant served in the Air Force, and he is still burdened by anxiety, panic attacks, and insomnia.  He associates these issues with his stressful experience in the military and especially a military discharge process during which he felt browbeaten into accepting his discharge.  The experience continues to cause him shame and contributed to a now estranged relationship with his parents and siblings.  While correcting his military record would not alleviate all of his struggles, he believes it could restore his dignity and a “wholeness” in his life.

Additionally, counsel contended the military policy regarding homosexuality has changed since the 1960s when the applicant was discharged, most notably with the repeal of the “Don’t Ask, Don’t Tell” law.  Under current regulations, the applicant would not have been discharged for the homosexual conduct that led to his dismissal in 1965.  Accordingly, the applicant’s Under Honorable Conditions characterization is now unjust and should be upgraded to Honorable and the stated reason and authority for his discharge on his DD Form 214 should be changed to Secretarial Authority, mirroring Department of Defense Guidance.

Counsel, on behalf of the applicant, finally contended it is appropriate that the three-year filing requirement be waived in this case in the interest of justice.  The applicant is still struggling with anxiety and was discharged 55 years ago, despite and otherwise positive service record, solely on the grounds of his homosexuality that would no longer be cause for discharge under current military law and policy.  Due to the shame and stigma associated with his discharge status, the applicant has been disconnected from the veteran community.  He was not aware of his right to a potential upgrade until 20 Nov 19, when he was referred to, and met with, a pro-bono legal organization specializing in veterans’ advocacy.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman third class (E-2).  

On 16 Dec 64, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 35-66, dated 17 Mar 69, for Class II Homosexuality.  The specific reason for the action was as follows:

-	On 17 Nov 64, the applicant gave a voluntary signed statement to an Office of Special Investigations (OSI) agent, admitting he had engaged in homosexual activities.

On 10 Feb 65, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 18 Feb 65.

On 19 Feb 65, the applicant received an Under Honorable Conditions (General) discharge.

On 4 Jun 65, State of XXXX, Department of  Motor Vehicles letter, to the United States Air Force Airmen Records Center, Randolph Air Force Base, Texas, requested completion of a medical information questionnaire on the applicant due to his conviction for “hit and run” on 15 Feb 65, in the Justice Court of XXXX, XXXX.  The applicant’s medical history was requested to assist in evaluating his case.

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 and counsel on 26 May 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 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 the DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, issued in conjunction with his 19 February 1965 discharge, be amended to read “Secretarial Authority”, “SPD – JFF” and “RE – 1J” in Block 11c. Reason and Authority, and “Honorable” in Block 13a. Character of Service.

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-2021-00180 in Executive Session on 28 Sep 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 28 Dec 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 counsel, dated 26 May 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.