RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00404

XXXXXXXXXXXXXX	COUNSEL: NONE
	
 	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

His uncharacterized discharge be upgraded to honorable based on the repeal of Section 654 of Title 10, United States Code.

APPLICANT’S CONTENTIONS

The discharge is unjust, as the military is no longer allowed to discriminate based on sexual orientation.  He recently became aware there was something he could do about his situation.  Living with this act of discrimination has caused a mental and emotional burden that he hopes he can finally put behind him.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

On 26 Jun 98, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen, Chapter 5, paragraph 5.36.2.22, due to homosexual admission.  The discharge authority approved the applicant’s entry level separation, with uncharacterized service. 

On 1 Jul 98, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant received an entry level separation with uncharacterized service.  His separation code and corresponding narrative reason for separation is HRB, Homosexual Admission, and his reentry code is 2C,  Involuntarily separated with an honorable discharge; or entry level separation without characterization of service.  He was credited with 22 days of active service.

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

APPLICABLE AUTHORITY

DoDI 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series). The Department of Defense (DoD) authorizes six characterizations of service for military service members to receive on discharge: (1) Honorable; (2) Under Honorable Conditions (General); (3) Under Other than Honorable Conditions; (4) Bad Conduct; (5) Dishonorable, and (6) Uncharacterized. 

Controlled by:  SAF/MRB
CUI Categories:  SP-MIL/SP-PRVCY
Limited Dissemination Control:  N/A
POC:  SAF.MRBC.Workflow@us.af.mil

DODI 1332.14, Enlisted Administrative Separations.  A separation will be described as an entry-level separation if separation processing is initiated while an enlisted service member is in entry level status (180 days continuous active duty) except when: (1) Characterization under other than honorable is authorized under the reason for separation and is warranted by the circumstances or (2) The Secretary concerned on a case by case basis determined the characterization of service as honorable is warranted.  The characterization is authorized due to reason of selected changes in service obligation, convenience of the government, disability, secretarial plenary authority or an approved reason established by the Military Department.  

Entry level separations, which are accompanied by an uncharacterized discharge, are given to individuals who separate prior to completing 180 days of military service or when discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. Rather, an uncharacterized discharge is the absence of a characterization of service, as the individual being discharged does not have sufficient time in service in order to fairly characterize the individual's service. 
 
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 3 Mar 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 in part.  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.  Accordingly, the Board recommends the applicant’s narrative reason for separation and separation code be changed.  However, the Boards finds insufficient evidence to warrant upgrading his entry level separation to an honorable discharge given his very limited active duty service (22 days).  In this respect, the Board finds the applicant’s uncharacterized service based on entry level separation is correct per DODI 1332.14, Enlisted Administrative Separations.  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 APPLICANT be corrected to show that on 1 Jul 98, he was discharged with a separation code and corresponding narrative reason for separation of JFF, Secretarial Authority.  

 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-2021-00404 in Executive Session on 20 Jan 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, dated 4 Feb 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, 3 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.