RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00010 COUNSEL: HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to honorable. _________________________________________________________________ APPLICANT CONTENDS THAT:. In a 34-page Counsel’s brief, the applicant contends his characterization of discharge is unreasonably harsh and is not supported by his record. 1) The Board of Inquiry (BOI) failed to follow proper administrative procedures, and deprived him of due process when they determined his discharge characterization. 2) The characterization of his discharge based upon his alleged homosexual conduct was improper in 1993 under the “Don’t Ask, Don’t Tell” (DADT) policy guidelines, and would be improper today. a) His record of outstanding honor and service to his country should have weighed in favor of a higher discharge characterization, and in the very least, shows that his UOTHC discharge was improper especially in light of the recognition of homosexual rights that have occurred in the decade since his discharge. b) Potential changes in law would put a stop to military discharges based on sexual preference orientation. 3) His UOTHC discharge characterization based upon unprofessional relationships was arbitrary, capricious, and improper. The BOI’s findings concerning his so-called “unprofessional relationships” were in error, as he never demonstrated favoritism or partiality toward his subordinates. 4) His UOTHC discharge characterization failed to reflect his honorable character in the Air Force, exemplified in his service record and in the recommendations of his superiors. His service was nothing short of honorable. Yet his military separation and discharge characterization has irreparably harmed him. The BOI ignored the greater part of the record before them, discounted recommendations of those who knew firsthand the quality of his character, work ethic and commitment, in order to recommend him for the lowest discharge classification available. The BOI never considered whether the alleged statements he made to the airmen were similar to the alleged statement he made to his ex-wife. The BOI, ostensibly on the grounds of waiver, allowed his ex-wife to testify to privileged communications between him and his wife. Ultimately, she testified that he had admitted his homosexuality to her in a private moment during their marriage, which bolstered the less-than-credible statements of the other main witnesses against him. His ex-wife’s testimony proved pivotal to the outcome of the proceedings; in which the BOI recommended a UOTHC discharge; and ignored his entire service record and the recommendations of his superiors, and belied his years of honorable service. The Air Force did not judge him on his service-related conduct; but, rather, on unreliable allegations made concerning his alleged sexual orientation. He never made an open statement that he was homosexual to a reliable person from whom an investigation concerning his alleged “propensity to engage in homosexual acts” could rightfully be initiated. The BOI erred in admitting the testimony of his ex-wife concerning his homosexual admission. The initial statement his ex-wife gave to investigators was based on a privileged marital communication. The BOI allowed his ex-wife to testify against him about the privileged marital communication without inquiring whether a waiver of the privilege had occurred. The BOI failed to consider whether his ex-wife may have felt compelled to disclose confidential communications during her marriage or felt her maintaining the asserted privilege would have detrimental effects on her Air Force career. The two witnesses, who testified against him, had previously been found guilty of providing false statements during their own criminal proceedings for fraud and grand theft auto. Until his ex-wife gave her statements, the Air Force had little more than the allegations made by three, less-than-credible airmen, with a storied history for making false statements. The BOI impermissibly invaded the husband-wife privilege as they exist under the Military Rule of Evidence (MRE) 504. The BOI not only permitted the admission of testimony of unreliable persons with specious motives, but it also permitted his ex-wife to testify over objection about confidential communications made during their marriage. His discharge characterization is unreasonably harsh because of the arbitrary and capricious manner in which this “unwise and unjust” policy has been historically applied—a policy whose repeal is imminent and for which no rational basis exists to support its severe and unjust application in this case. His discharge characterization shuts the door to business and employment opportunities, and invites unwarranted scrutiny into his character and fitness as a prospective employee. Changes in military policies and recognition of the fundamental rights of homosexuals in the past decade and near future would likely have allowed him to complete his Air Force service. The military attitudes about gays and lesbians in uniform have changed significantly in the sixteen years since his discharge. These shifts have resulted in fairer, more even-handled treatment and processing of service personnel discharged under DADT than that which he received. As such, equity dictates he should be granted a service characterization of honorable to prevent a continued injustice. In support of his request, the applicant provides a 34-page counsel’s brief, with 16 attachments. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served on active duty in the Air Force from 12 Dec 86 – 10 Jun 94. On 18 Nov 92, the applicant received a Letter of Reprimand (LOR) for engaging in sodomy on numerous occasions in his off base residence with a male enlisted member from his unit; engaging in sodomy with two civilian males; admitting to his ex-wife he was homosexual; sharing his off base quarters with two enlisted members for periods of one month and two weeks, respectively; and in the presence of a number of airmen discussed having a homosexual group orgy. On 1 Dec 92, an Unfavorable Information File (UIF) was established. On 4 Feb 93, the applicant was notified that his wing commander was initiating action against him under the provisions of AFR 36-2, Chapter 3, Administrative Discharge Procedures - Misconduct, Moral or Professional Dereliction; based on the following allegations that he; 1) Did during the calendar year 1992, engage in unprofessional relationships by socializing with male airmen at his quarters, 2) Did during Sep 92, engage in an unprofessional relationship by allowing an enlisted person to share his off base living quarters for a period of approximately one month; 3) Did from on or about (o/a) 15 Jun 92, to o/a 2 Jul 92, engage in an unprofessional relationship by allowing an enlisted person to share his off base living quarters and drive his private automobile for a period of two weeks; 4) Did during calendar year 1992, engage in a sexual relationship with a male civilian; 5) Did from o/a 23 Sep 92 to o/a 10 Oct 92, engage in a sexual relationship with a male civilian; 6) Did from o/a 15 Jun 92 to o/a 2 Jul 92, commit sodomy with an enlisted airman; 7) Did during calendar year 1991, admit to his then wife, that he was homosexual; 8) Did during Jun 92 state to an airman, that he had admitted his homosexuality to his wife. On 4 Feb 93, the applicant acknowledged receipt of the notification of action under AFR 36-2 and requested his case be processed under AFR 36-2, Chapter 7, and that he intended to appear before the BOI with counsel. A legal review of the proposed discharge was legally sufficient to warrant initiation of the discharge action under AFR 36-2. The Staff Judge Advocate concurred with the recommendation that a UOTHC discharge be given in this case. IAW AFR 36-2, paragraph 3-2d, when homosexuality is the sole basis for discharge, an honorable or general discharge will, as a rule, be issued. However, a UOTHC discharge is authorized if the homosexuality in question was committed with a subordinate in circumstances that violate customary military superior and subordinate relationships. On 20 May 93, a BOI convened, and after considering the evidence, found the applicant did engage in conduct in a manner incompatible with the necessary standards of professional and personal conduct, character, and integrity, as evidenced by serious and recurring misconduct. The BOI determined the applicant should not be retained and recommended he be removed from active service with a UOTHC discharge. The BOI was found legally insufficient, and on 13 Jul 93, the Air Combat Command (ACC) commander concurred with the BOI’s recommendation that the applicant be separated from the Air Force with a UOTHC discharge. On 27 May 94, the Secretary of the Air Force approved the applicant’s separation with a UOTHC discharge. On 10 Jun 94, the applicant was involuntarily discharged with a UOTHC discharge and a separation code of GRA (Homosexual Act) in the grade of captain. He served 7 years, 5 months, and 29 days on active duty. Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, indicated that on the basis of the data furnished, they were unable to locate an arrest record. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. In this respect, we note that under today’s standards, credible information necessary to conduct an inquiry into alleged homosexual conduct must come from a reliable person. In view of this, the testimony of the witnesses that testified against the applicant during the BOI would not be admissible under today’s standards. Moreover, under today’s standards an honorable characterization of service is appropriate in the absence of aggravating factors. In view of this and since the only aggravating factor in the applicant’s record was based on the testimony of one of the unreliable witnesses, we find the characterization of his service inappropriate. We also note that other than this alleged misconduct, the applicant’s record of military service is exemplary, as evidenced by his record of performance and nature of assignments. Therefore, in view of the above, we recommend the characterization of his service be upgraded to honorable, the narrative reason for his separation be changed to Secretarial Authority, and that he be issued a separation code of KFF, in accordance with current Department of Defense guidance. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 10 June 1994, he was honorably discharged, with a narrative reason for separation of “Secretarial Authority” and a separation code of “KFF.” _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00010 in Executive Session on 1 Sep 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2011-00010 was considered: Exhibit A. DD Form 149, dated 1 Dec 10, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Panel Chair