RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01824 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His General (Under Honorable Conditions) discharge be upgraded to Honorable. APPLICANT CONTENDS THAT: He served honorably with dignity and integrity. His discharge was solely based on homosexuality. There were no blemishes on his record and even when he notified his commander of his sexuality in Sep 70, he was asked to continue to serve until Jan 71. Today gay service members are permitted to serve. In support of his request, the applicant provided copies of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and a character letter from a co-worker that served with applicant, dated 24 Feb 14. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 9 Apr 69. On 10 Nov 70, the applicant received an Article 15, Nonjudicial Punishment, for without authority - failing to go, a violation of Article 86 of the Uniform Code of Military Justice (UCMJ). The applicant was ordered to forfeit $25.00. On 7 Dec 70, the applicant was notified by his commander he was being recommended for discharge based on exhibited and professed homosexual tendencies 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, Chapter 2, Section A, paragraph 2.4f. On 23 Dec 70, the Staff Judge Advocate reviewed the case and found it legally sufficient. On 31 Dec 70, the discharge authority approved a General (Under Honorable Conditions) discharge. On 8 Jan 71, the applicant was furnished a General (Under Honorable Conditions) discharge, and was credited with 1 year and 9 months of active service. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C, D, and E. AIR FORCE EVALUATION: AFPC/DPSOR recommends partial correction. Recommend the Board change the authority from “AFM 39-12, Unfitness” to “AFR 39-10, Administrative Separation of Airmen”. In addition, they recommend that the Board approve changing the Separation (SPD) code from “361” to “JFF” and the narrative reason for separation from “Attrition, Unsuitability-Homosexual Tendencies – Class III, Waiver of Board Authority” to “Secretarial Authority”. On 10 Sep 2011, the Under Secretary of Defense issued guidance pertaining to correction of military records requests resulting from the repeal of Title 10, Section 654, commonly known as “Don't Ask, Don't Tell (DADT)”. An excerpt from the aforementioned guidance is provided: “Effective September 20, 2011, Service DRBs should normally grant requests to change the narrative reason for a discharge (the change should be “Secretarial Authority” (Separation Program Designator Code (SPD) code JFF)), requests to re-characterize the discharge to honorable, and/or requests to change the reentry code to an immediately-eligible-to-renter category (the new RE code should be IJ) when both of the following conditions are met: (1) the original discharge was based solely 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.” The discharge was properly processed according to the applicable regulation and the applicant's master personnel record reveals evidence of an aggravating factor. The presence of an additional aggravating factor in the record prevents them from recommending a discharge upgrade to honorable. They do recognize that it has been approximately 44 years since the applicant's discharge and the applicant has provided evidence of a clean record since discharge so the board could consider a discharge upgrade based on clemency. AFPC/DPSOR recommends disapproval of the applicant’s request to upgrade his service characterization to Honorable based on additional aggravating factors found in the applicant’s master personnel record. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial, indicating there is no evidence of an error or injustice. Although AFPC/DPSOR recommends some changes per the 10 Sep 11 guidance referenced above, they do not support the change of applicant’s character of service to Honorable based on the evidence of misconduct in the applicant’s record. As such, they recommend the Board not change the applicant’s current Reentry Code of “2”. A complete copy of the AFPC/DPSOA evaluation is at Exhibit D. AFPC/JA recommends partial correction. Pursuant to current DoD policy, they agree with AFPC/DPSOA and AFPC/DPSOR’s opinion that the applicant’s discharge warrants a change to the authority for discharge, narrative reason for separation and SPD code, but not an upgrade to his characterization of discharge. They also recommend leaving the applicant’s Reentry code unchanged unless the board changes the discharge characterization to an Honorable discharge. A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided a report from the Criminal Justice Information Services (CJIS) Division of the Federal Bureau of Investigation (FBI). On 3 Sep 14, a search of the fingerprints provided by the applicant revealed no prior arrest data at the FBI. 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 injustice warranting relief. The applicant is requesting his discharge be upgraded to honorable based on the repeal of DADT. No evidence has been presented which would lead us to believe his discharge was improper or contrary to the directive under which it was effected at the time of his separation. However, in light of the repeal of Don’t Ask, Don’t Tell (DADT), it would be appropriate to upgrade his discharge to honorable. In a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that Service Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable if 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. While it appears the applicant’s failure to go was included as derogatory data in the discharge notification, we are not convinced this constitutes misconduct that, in and of itself, would have formed the basis for discharge with a General (Under Honorable Conditions) service characterization. Therefore, we recommend the applicant’s records be corrected as 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 8 Jan 71, he was discharged with a narrative reason for separation of “Secretarial Authority”, a separation program designator code of “JFF”, reentry code of “1J”, and a service characterization of “Honorable”. The following members of the Board considered AFBCMR Docket Number BC-2014-01824 in Executive Session on 7 Apr 15 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 AFBCMR Docket Number BC-2014-01824 was considered: Exhibit A. DD Form 149, dated 28 Apr 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 28 Oct 14. Exhibit D. Memorandum, AFPC/DPSOA, dated 8 Dec 14. Exhibit E. Memorandum, AFPC/JA, dated 30 Dec 14. Exhibit F. Letter, SAF/MRBR, dated 23 Jan 15. Exhibit G. FBI Report, dated 3 Sep 14.