RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02142 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He was discharged solely for being gay. The previous statement that “Homosexuality is incompatible with Military Service” is now no longer punishable and even “Don’t Ask Don’t Tell” (DADT) has been repealed. He is unemployed and his current status may impact his ability to qualify for Federal jobs. In support of his request, the applicant provides copies of his DD Forms 214, Report of Separation from Active Duty. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 Jul 72, the applicant enlisted in the Regular Air Force. On 18 Aug 78, the applicant failed to report back to his duty section for the remainder of the duty day. For this misconduct, he was given a record of counseling and advised that any future actions of this nature would not be tolerated. On 5 Dec 78, the applicant was notified by his commander that he was recommending his discharge from the Air Force under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, specifically, for Acts of Sexual Perversion. The applicant acknowledged receipt of the discharge notification. On 12 Dec 78, the applicant, after consulting with counsel, waived his right to present his case to an administrative discharge board, conditioned upon the issuance of an honorable discharge. By undated letter, the 42d Combat Support Group commander (42 CSG/CC) reviewed the applicant’s administrative discharge case; disapproved his conditional waiver, and directed an administrative discharge board convene. On 14 Feb 79, an administrative discharge board convened to determine whether or not the applicant should be discharged for sexual perversion. After considering the evidence of record, a majority of the board found, by a preponderance of the evidence, the applicant had committed the alleged offense and recommended he be discharged for misconduct, with a general (under honorable conditions) characterization of service and that he not be offered rehabilitation opportunities with a conditional suspension of his discharge. The board considered rehabilitation inappropriate because the applicant’s commander did not recommend probation and/or rehabilitation, the applicant (through counsel) indicated a non-preference for any probation, and the type of offense was not considered by the board to be rehabilitative. On 1 Mar 79, the applicant wrongfully programmed unauthorized information into a B3500 computer. For this misconduct, he received an Article 15, Uniform Code of Military Justice (UCMJ) with punishment consisting of reduction to the grade of sergeant and forfeiture of $100.00 pay. On 7 Mar 79, the Staff Judge Advocate reviewed the Record of Administrative Discharge Board proceedings and found it legally sufficient to support discharge with a recommendation to the 42 CSG/CC that the applicant be discharged for misconduct, with a general discharge without probation and rehabilitation. On 15 Mar 79, the applicant was discharged with service characterized as general (under honorable conditions) in the grade of sergeant. He served 6 years, 7 months and 28 days of total active service. On 15 Nov 81, the applicant submitted a DD Form 149, Application for Correction of Military or Naval Record; requesting his general (under honorable conditions) discharge be upgraded to honorable; information regarding allegations of homosexuality or homosexual conduct be removed from the Office of Special Investigation or other agencies files and be forwarded to him; return all original negatives, prints and copies that were used as evidence against him; his recorded be amended to reflect the grade of staff sergeant; the order to bar him from the base be terminated, and an investigation into the Administrative Discharge Board proceedings. On 21 Dec 81, the applicant was notified that his application for review of discharge and military records was forwarded to the Air Force Discharge Review Board (AFDRB) of the Secretary of the Air Force Personnel Council (SAFPC) for action. On 4 May 82, the AFDRB convened and concluded that the applicant’s discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the sound discretion of the discharge authority, that the applicant was provided full administrative due process, and that his discharge should not be changed. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSOR recommends denial of the applicant’s request to change his character of service. However, they recommend the applicant’s narrative reason for separation be changed to “Secretarial Authority” and his Separation Program Designator (SPD) code be changed to “JFF.” “Effective 20 Sep 11, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge (the change should be “Secretarial Authority,” Separation Program Designator (SPD) code “JFF,” requests to re- characterize the discharge to honorable, and/or requests to change the reentry (RE) code to an immediately-eligible-to- reenter category (the new RE code should be 1J) when both of the following conditions are met: 1) the original discharge was based upon 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. Although each request must be evaluated on a case-by-case basis, the award of an honorable or general discharge should normally be considered to indicate the absence of aggravating factors.” DPSOR states the applicant was discharged for frequent participation in homosexual activities. Although the discharge was properly processed according to the applicable regulation, the applicant’s discharge record indicates his discharge was based on DADT and aggravating factors. The complete DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial of a change to his Reenlistment (RE) code. On 10 Sep 11, the Under Secretary of Defense issued guidance related to the repeal of DADT. The guidance states that requests to change the RE code to 1J, which denotes “eligible to reenlist-elected separation or discharge” should be granted for members separated under DADT unless there were aggravating factors or misconduct present. It is evident the applicant had disciplinary problems as supported by his 9 Mar 79, Article 15, UCMJ. The complete DPSOA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 23 Aug 13, for review and comment within 30 days. As of this date, this office has not received a response (Exhibit E). _________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we find no evidence of an error or injustice in the discharge processing to warrant upgrading his discharge to honorable. Therefore we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant states he was discharged for being gay and is requesting relief under the DADT policy. However, in a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that states the Service Discharge Review Boards should normally grant requests to re- characterize the discharge to honorable, when both of the following conditions are met: (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. We considered upgrading the applicant’s discharge based on the repeal of DADT; however, the evidence reflects that there was misconduct. In this respect, we note that after the applicant was notified that this commander was initiating discharge action against him, the applicant received an Article 15, for wrongfully programming unauthorized information into a computer and was reduced to the grade of sergeant and ordered to forfeit $100.00. In view of this we find no basis to recommend granting the applicant’s request to upgrade his discharge to honorable under the DADT policy. In the interest of justice, we also considered upgrading the discharge based on clemency; however, the applicant provides no evidence to compel us to recommend granting the relief sought on that basis. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After carefully reviewing this application, we agree with the opinion and recommendation of DPSOR and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of an injustice. Accordingly, we recommend his records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that on 15 March 1979, he was discharged with a narrative reason for separation of “Secretarial Authority,” and issued a separation code of “JFF.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02142 in Executive Session on 4 and 5 Mar 14, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Apr 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 3 Jul 13. Exhibit D. Letter, AFPC/DPSOA, dated 7 Aug 13. Exhibit E. Letter, SAF/MRBR, dated 23 Aug 13.