RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03730 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) character of service be upgraded to general, under honorable conditions. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. When he signed the discharge action, statement in 1968 he was told it would be a general discharge and that is what he thought he had. At the time of his discharge, he was going through a nasty divorce. Because of this, he was suffering from mental and physical exhaustion. He was under distress because of an investigation as a result of his wife’s complaint that he was a transvestite. He remembers that he signed some papers but they were not completely filled out when he signed them. He does not remember what he signed. His wife was very angry and threatened to make his life a real hell. He would have agreed to anything to get away. 2. Had he known about the UOTHC character of service he would have tried to correct it. He believes his discharge papers were sent to his parents’ home. He pleads guilty to being young and stupid. He was naïve, immature and made poor choices. In support of his request, the applicant provides copies of his personal statement, a written “Statement Of Witness” from his ex-spouse, his Discharge Action Statement and AF Form 548, Action Required on the Probation and Rehabilitation (P&R) Program When an Airman is Being Considered for Discharge Under Chapter 2, Sections A, B, or C, AFM 39-12. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. The applicant enlisted in the Regular Air Force on 28 June 1965. He was progressively promoted to the grade of Airman First Class, E-3. On 30 October 1968, he was notified by his commander that he was recommending him for discharge from the Air Force, for unfitness, under the provisions of AFM 39-12, Chapter 2; section B, paragraph 2-15b. The reasons for the proposed action were: a. An investigation was requested by the base commander based on information that the applicant told his wife that he was a transvestite and had dressed in women’s clothing on several occasions. b. A sworn statement dated 14 August 1968, by his wife, indicates that about June 1966, at location of assignment, he performed a transvestite act by dressing in female undergarments and negligee; that about November or December 1966, and again about April 1968, at location of assignment, he performed transvestite acts by dressing in female undergarments; and that about June 1966, he told his wife that he was a transvestite. c. On 14 August 1968, at base of assignment, he orally admitted that he had obtained membership in an unspecified number of transvestite clubs, some of which he joined in the name of his wife. d. On 14 August 1968, a search of his personal effects revealed the following: fifteen photographs of men dressed in female undergarments, six of which appeared to be the applicant; twelve photograph clippings showing two men dressed as females; numerous documents, including three books, one pamphlet, advertisements, and twelve letters containing material of a transvestite nature; and six items of female undergarments. e. On 15 August 1968, in a sworn statement, he admitted that since January 1968, he had written from twenty-five to forty letters to individuals and clubs concerning publications dealing with transvestitism and that in several of these letters he wrote as if he was a woman; and that in May or June 1968, at a party in private residence, he dressed in female undergarments. The applicant’s commander recommended that he be furnished an Undesirable Discharge Certificate; however, the final decision in his case and the type of discharge certificate to be awarded rested with the discharge authority. 2. On 30 October 1968, the applicant acknowledged receipt of the notification of discharge and was advised of his right to present his case before an administrative discharge board, consult counsel, and submit statements in his own behalf. He waived his right to present his case before an administrative discharge board and to provide a statement in his own behalf; however, he consulted counsel. 3. Subsequent to the file being found legally sufficient, the discharge authority approved the recommendation and directed the applicant be discharged and furnished an Undesirable Discharge Certificate. The characterization of service was not specified in the discharge authority’s letter. The applicant was discharged on 15 November 1968, and was credited with completing 3 years, 4 months and 18 days of active duty service. 4. On 24 March 2014, the applicant was given an opportunity to submit comments regarding his post service activities (Exhibit C). 5. In further support of his request, the applicant submits a personal statement, background report, letters of recommendation and appreciation, certificates of achievements, training certificates, marriage certificate, DVA certificate, college transcripts and military service documents. He reiterates his previous contentions regarding the issues he faced prior to and during his discharge actions and expands on his post-service accomplishments. He summarizes that he would like to believe that over the years, with his thirst for knowledge, he has become a better person than he was in his teens. He knows of at least six people whom have benefited from his experience and knowledge. The applicant’s complete response with attachments is at Exhibit D. ________________________________________________________________ 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. After a thorough review of the circumstances surrounding the applicant's discharge, the Board majority finds it significant that the applicant’s discharge was premised solely on cross- dressing activities that took place on his personal time. The record contains no evidence of any job-related misconduct, and the commander’s report explicitly states there was no record of demotion, punishment under Article 15, or record of conviction by Court Martial. While it is true that the applicant’s most recent performance report gave him a rating of 3 on a scale of 1-9, and that his record contains no favorable communications, citations, or awards, his discharge was not based on unsatisfactory job performance or misconduct, but on cross- dressing activities which came to light only as a result of information provided by his wife and the resulting Office Of Special Investigations (OSI) investigation and search of his personal effects. Under current guidance, discharges that took place in the past and were based solely on homosexual conduct are to be upgraded to Honorable. While the applicant was not discharged for homosexual acts, discharge guidance, titled “Homosexuality, Chapter 14”, compiled of excerpts from AFM 39- 12, para. 2-103 (IMC 81-2, 12 March 1981), AFM 39-12, 1 September 1966, AFR 35-66, 14 April 1959, AFR 35-66, 23 July 1956, AFR 35-66, 31 May 1954, AFR 35-66, 12 January 1951, AFR 35-66, 20 February 1950 and various sister-service regulations, is highly persuasive in our disposition of this matter. It addresses discharges solely on the basis of homosexual tendencies, noting that such discharges have been held to violate constitutional rights including the right to free speech, free association, and personal privacy. Federal courts have also held that a less than honorable discharge for conduct that does not result in deficiency of performance of military duty and does not have a direct impact on military service exceeds the military’s statutory authority and violates due process. In summary, discharges for homosexual tendencies, without more, should also be upgraded to Honorable. In our view, this reasoning applies equally to the applicant’s discharge for cross-dressing interests and activities. The applicant’s acts of self-expression took place on personal time and there is no indication in the record that they adversely affected his performance of his military duties. It also appears that the applicant has led a stable and productive life since his separation from the Air Force, and his background report indicates no adverse information over the past 30 years. Based on the rationale above, the majority finds it in the interests of both justice and clemency to upgrade the applicant’s characterization of service to “honorable.” 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 APPLICANT be corrected to show that on 15 November 1968, he was honorably discharged with a narrative reason for separation of “Secretarial Authority” and was furnished an Honorable Discharge Certificate. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 22 April 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a unanimous vote, the Board recommended upgrading the applicant’s character of service. The majority recommended an upgrade to “honorable.” Panel member voted to upgrade the character of service to “general, under honorable conditions,” and has submitted a minority report, which is attached at Exhibit E. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03730 was considered: Exhibit A. DD Form 149, dated 29 August 2013, w/atchs. Exhibit B. Applicant’s DD Form 214. Exhibit C. Letter, SAF/MRBC, dated 24 March 2014. Exhibit D. Letter, Applicant, not dated, w/atchs. Exhibit E. Letter, Minority Report, dated 2 June 2014