TYPE
. GEN	PERSONAL APPEARANCE	X   RECORD REVll:W
ADDRESS AND OR ORGANll.ATION OF Q.)Vl'!SEL

x
x

A59.15,  A92.35, A92.17, A94.0S, A94.23,A94.25

x
...	x
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1 ORDER APPOOOING THE BOARD

3	LEITER OF NOTIFICATION
HEARING DATE	4	BRIEF OF PERSONNEL FILE
02-06-12	FD2002-0070	COUNSEL'S RELEASE TO THE BOARD
ADDmONAL EXHIBITS SUBMITIED AT TllvlE OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPERANCE HEARING

REMARKS
Case heard at Washington, D.C.

Advise applicant of the decision of the Board, and the right to a personal appearance with/without counsel, and the rightto submit an application to the AFBCMR

SAF/MIBR
550 C STREET WEST. SUITE 40
RANDOLPH  AFB.TX 78150-4742

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
1535 COMMAND DR, EE WING, 3RD FLOOR ANDREWS AFB, MD 20762-7002

AFHQ FORM 0-2077,JAN 00	(EFN2)	Previous edition will be used.

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AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE

CASE NUMBER

GENERAL:  The applicant appeals for upgrade of discharge to honorable and to change the reason and authority for the discharge, and to change their reenlistment code.

The applicant was offered a personal appearance before the Discharge Review Board but declined to exercise this right.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS: Upgrade of, change of reason and authority for the discharge, and change of reenlistment are denied.

The Board finds that neither the evidence of record or that provided by the applicant substantiates an inequity or improprietythat would justify a change of the discharge.

Issues. Applicant received a general discharge for homosexual conduct. Applicant notes this was an isolated incident in 10 years of otherwise exemplary service and he had no record of any disciplinary actions or misconduct. The records review disclosed member was arrested by civilian law enforcement in the men’s restroom of a local park known to be frequented by homosexuals, attempting to engage in a homosexual act with a civilian man, as witnessed by the police officer. He was charged with lewd and lascivious conduct. Although member denied this charge, he pled no contest to a lesser civilian charge of criminal trespass, which the record characterized as “inconsistent with innocence.” When recommended for administrative discharge, the member exercised his right to a board hearing, which found he did attempt to commit the homosexual act. Because doing so in a public place is considered an aggravating factor, the Board also recommended member receive a general characterization of service. Current Department of Defense policy renders homosexual conduct incompatible with military service and is a basis for administrative discharge. Furthermore, credible information is based on its source and the surrounding circumstances, those being based on articulable facts, not conjecture or speculation. When those stated circumstances are aggravated, less than fully honorable characterization of service is authorized. In this case, the testimony of the police officer witness to the conduct was apparently deemed credible by the administrative discharge board.  Member was afforded and exercised all of his	rights, and was still found to have committed the alleged behavior. While the Board noted member’s otherwise satisfactory service, they could find no inequity, impropriety, or sufficiently mitigating or extenuating circumstances that would warrant an upgrade of the discharge.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and that the applicant was provided      administrative due process.

In view of the foregoing findingsthe board	concludes that there exists no legal or equitable basis for upgrade of discharge, thus the applicant’sdischarge should not be changed.

Attachment: Examiner’sBrief