AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

DEC I11998 

DOCKET NUMBER:  96-02935 
COUNSEL : * 
HEARING DESIRED:  YES 

IN THE MATTER OF: 

. P - - L L   _F-- 

APPLICANT REOUESTS THAT: 

Her discharge be voided and she be reinstated to active duty, or 
in the  alternative, the narrative reason  for her  separation be 
changed to  "Convenience of  the Government" and her Reenlistment 
Eligibility (RE) code be upgraded. 

APPLICANT CONTENDS THAT: 

At  no  time  was  she  asked,  or  did  she  admit  to,  homosexual 
orientation or conduct. 

The  applicant  states  that  Department  of  Defense  (DOD) policy 
clearly states there is a key distinction between orientation and 
conduct. 
Conduct  is  defined  as  an  act,  statement,  or 
marriage/attempted marriage.  Act  is defined as bodily contact, 
between members of  the  same  sex  for  the purpose  of  satisfying 
sexual desires.  Statement is defined as a remark by the member, 
that the member is a homosexual.  The policy further states that 
the  commander initiates separation action  if  there  is probable 
cause  to  believe  a  member  has  engaged  in  homosexual  conduct. 
However, she was  never  charged and never admitted  to  any  such 
action.  The applicant contends that her discharge was based on 
accusations,  none  of  which  were  proven. 
In  addition,  the 
creditability  and  character  of  the  accusers  were  never 
investigated.  The allegations against her were never proven and 
the  commander  never  initiated  an  inquiry  into  the  alleged 
homosexual conduct.  DOD policy clearly states that inquiries are 
based  on  factual  and  creditable  information  that  a  basis  for 
discharge exists.  This did not occur in her case.  She chose to 
waive her rights to an administrative discharge board because she 
did not want  to further experience the personal humiliation and 
aggravation she had  already experienced.  She believes that she 
was viewed, in all senses of the word, as guilty prior to trial. 
Furthermore, when she accepted the honorable discharge, she was 
told it was not  an admittance to the  allegations of  homosexual 
conduct/orientation.  The reason for her discharge and RE code of 
RE-2C scars her future job opportunities; government or civilian. 

The  appTicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

On 15 September 1992, the applicant enlisted in the Regular Air 
Force  for a period of 4  years. 
On  11 April  1996,  the applicant  received a Letter of Reprimand 
for  conduct  prejudicial  to  good  order  and  discipline. 
Specifically, that  she  was  lying  on  a  twin-size  bed  in  the 
bedroom  with a female with her  blouse unbuttoned to  the bottom 
button on one occasion and seen lying with said female on a sofa 
with her blouse undone except for one on another.  Additionally, 
that  she stated to her  roommate that  she was  a homosexual, or 
words  to that  effect, and  that she was  involv 
homosexual relationship with a female at or near 

The applicant was notified by her commander on 30 May 1996, that 
administrative discharge action was being  initiated against her 
for  homosexual  conduct. 
Specifically,  that  she  did  between 
12 March  1996  and  7 April  1996,  wrongfully  engage  in  conduct 
prejudicial to good order and discipline.  To wit, she was seen 
lying  with  a  female with  her  blouse  unbuttoned  to  the  bottom 
button-on one occasion and seen lying with said female on a sofa 
with her blouse undone except for one on another.  Additionally, 
that  she stated to her  roommate that  she was  a homosexual, or 
words  to that effect, and  that  she was  involv 
homosexual relationship with a female at or near 
The commander advised the applicant that if app 
receive a general discharge. 

On  19  June  1996,  the  applicant  waived  her  right  to  an 
administrative discharge board, contingent upon her receipt of no 
less than an honorable discharge. 

On 9 July 1996, the discharge authority accepted the conditional 
waiver  and  directed  that  the  applicant  be  separated  with  an 
honorable discharge. 

On 17 July 1996, the applicant was honorably discharged under the 
provisions of AFI 36-3208 (Homosexual Admission).  She was issued 
an RE code of RE-2C.  She completed 3  years, 10 months, and  3 
years of active service. 

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AIR FORCE EVALUATION: 

The  Programs  and  Procedures Branch, AFPC/DPPRP,  reviewed  this 
application and states that there are no errors or irregularities 
causing an injustice to  the applicant.  The  discharge complies 
with  directives in effect  at  the  time  of  her  discharge.  The 

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records  indicate  the  applicant's  military  service was  reviewed 
and appropriate action was taken.  They note that applicant did 
not identify any specific errors in the discharge processing nor 
provide facts which warrant a change in her narrative reason for 
discharge.  Therefore,  they  recommend  applicant's  request  be 
deniedl. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
A complete copy of  the Air Force evaluation was forwarded to the 
applicant on 11 November 1996, for review and response within 30 
days (Exhibit D). 
From  12  December  1996  to  22  November  1997,  the  applicant's 
counsel has been provided extensions of time to response to the 
advisory opinion (Exhibits E through 0). 
The  applicant's  counsel  reviewed  the  Air  Force  evaluation  and 
states that the applicant's discharge was not in compliance with 
applicable directives or regulations.  In this respect, counsel 
notes the following: 

1.  The  applicant  did  not  receive  proper  notice  of  the 
proposed  basis  for discharge.  Applicant  was  initially advised 
that  her  basis  for  discharge  was  homosexual  conduct, with  no 
mention of homosexual admission except by numerical reference to 
AFI  36-3208.  The  lengthy narrative reason f o r   discharge which 
followed was confusing, so that the alleged admission is lost in 
references  to  acts,  homosexual  or  otherwise,  and  to  conduct 
prejudicial to good order and discipline.  By regulation, and as 
a matter of due process, the applicant was entitled  to a clear 
and specific description of the reason for discharge. 

2.  The applicant was wrongly advised of the burden of proof 

in the notification letter. 

Counsel's complete response is attached at Exhibit P. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Chief,  General  Law  Division,  AF/JAG,  reviewed  this 
application and states the following: 

a.  Whether the applicant made  a homosexual statement is a 
question of fact.  The inquiry officer's  (IO'S) finding that she 
did  was  based  on  testimony  of  two  airmen.  According  to  the 
testimony, when the applicant was told that others were looking 
into  allegations of  her  (the applicant)  being  a  lesbian,  the 

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applicant said, "Well, between us,. .  . I' 
The  applicant  denies 
ever sqing she was a lesbian.  The applicant's counsel contends 
that even if she did say those words are susceptible of numerous 
interpretations 
most of them  "innocent.  From all indications , 
the  summary  of  the  testimony  contains  an  exact  quote  of  the 
applicant's statement.  Despite the lack of evidence of precisely 
what  question or  comment preceded  this  statement, they believe 
the  nature  of  the  conversation,  compels  the  conclusion  the 
applicant was acknowledging that she was homosexual. 

I 

b.  Although  verbatim  testimony might  have  disclosed more, 
the IO, commander, and witnesses all believed the comment to be a 
statement of homosexual orientation.  In their opinion, this is a 
reasonable  interpretation  of  the  comment. 
The  policy  on 
homosexual conduct does not require the express statement ,  \\I am 
a homosexual"  in  order  to  support  a  discharge.  Other  verbal 
statements reasonably interpreted to be statements of homosexual 
orientation  suffice,  as  do  actions  or  gestures  under 
circumstances  reasonably  evidencing  them  to  be  nonverbal 
statements of  homosexual  orientation.  On  the  other  hand, the 
evidence  supporting  the  second  allegation  of  a  homosexual 
statement P.  .  . that you were involved in an ongoing homosexual 
relationship  with  a  female  at  or  near  McGuire  AFB")  is  more 
removed and less clear.  Nevertheless, even if this statement is 
given no weight, the prior statement standing alone is sufficient 
to support the separation action. 

c.  They do not agree with the applicant's  contention that 
the  inquiry  was  flawed  in  such  a  way  as  to  violate  her 
substantive rights and require its exclusion as evidence in the 
discharge. Proceedings.  While it might have been preferable for 
the  commander's  appointment  letter  to  spell  out  the  specific 
information he considered in ordering the inquiry, it appears he 
had  received  information  about  specific  acts  and  statements, 
reportedly homosexual in nature, which if verified would  form a 
basis for discharge. 

d.  Appliqant's 

inquiries  or 
investigations were conducted without proper authority, and that 
these  somehow  tainted  the  one  official  inquiry, is  tenuous  at 
best. 
There  were  no  official  inquiries  prior  to  the  one 
initiated by the commander. 

assertion  that  prior 

e.  They  are  unpersuaded  by  the  applicant's  arguments 
regarding alleged legal errors in the discharge process.  First, 
the notification memorandum  is quite clear about the reason for 
discharge.  While  it  could  have  been  improved on overall, the 
very  first  sentence  stated,  '1  am  recommending your  discharge 
from the  [USAF] for Homosexual Conduct,".  The applicant claims 
that she had no  reason to expect her DD Form  214 to reflect a 
homosexual admission.  Whether or not the notification letter was 
confusing  as  to  the  acts,  she  was  clearly  on  notice  that 
homosexual statements were the basis for the case.  Any doubt as 

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to the meaning  of homosexual  \\conduct” would have been resolved 
by  a qmck reference to AFI 36-3208, which defines  “conduct” to 
include acts, statements, and marriages. 

f.  They  disagree  that  the  notification  memorandum 
improperly informed the applicant of  the burden of  proof  at  an 
administrative  discharge  board. 
The  language  she  points  to 
correctly  states her  right to  rebut the presumption created by 
the homosexual statement.  Nowhere does it say the government is 
relieved of its burden of proving she made the statement in the 
first  place,  or  that  it  was,  under  the  circumstances,  a 
homosexual statement. 

g.  The  burden  rests  on  the  applicant  to  establish  the 
existence of an error or injustice.  To now  state that  she was 
not properly counseled is decidedly self serving.  The applicant 
must  bear  some  responsibility  for  the  decision  to  waive  the 
board. 

h.  The applicant’s reliance on an Army Board for Correction 
of  Military  Records  case  is  misplaced. 
Although  that  Board 
voided a discharge for homosexuality (issued in 1987) because the 
Army failed to comply with its own  regulation, it did so on the 
ground that the Army wrongly refused that applicant’s request for 
a board  hearing, where the governing regulation clearly granted 
him that due process right. 

i.  While  certain  aspects  of  the  case  might  have  been 
improved  on,  the  evidence  is  sufficient  to  support  a 
determination  that  the  applicant  made  a  homosexual  statement. 
She was afforded all due process, was represented by counsel, and 
voluntarily waived her right to present these arguments ,  factual 
and  legal,  to  a  discharge  board. 
The  Air  Force  properly 
discharged her  for homosexual conduct and issued a DD Form  214 
consistent with  its  standard  practice.  They  see  no  error  or 
injustice that warrants relief, 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit Q , 

APPLICANT‘S REVIEW OF AIR  FORCE EVALUATION: 
A complete copy of the Air Force evaluation was forwarded to the 
applicant  on  16 March  1998, for  review and  response .-within 30 
days.  However, as of this date, no response has been received by 
this office, 

THE  BOARD  CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

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2.  The-application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  injustice  to  warrant 
changing the  applicant's  narrative  reason for separation.  The 
applicant contends the reason for her discharge  is scaring her 
future  government  or  civilian  job  opportunities.  In  view  of 
this, and  in  an  effort  to  remove  the  stigma  attached  to  her 
narrative  reason  for  discharge,  we  believe  the  applicant's 
narrative reason for separation should be changed in the interest 
of  equity and justice.  Therefore, we  recommend her records be 
corrected to the extent indicated below. 

4.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  injustice  to  warrant 
reinstating  the  applicant  to  active  duty  and  changing  her 
Reenlistment Eligibility  (RE) code.  After thoroughly reviewing 
the evidence of record and noting the applicant's contentions, we 
are not persuaded that she should be  reinstated to active duty. 
We  note  the  applicant  was  notified  by  her  commander  that 
administrative discharge action was being  initiated against her 
for  homosexual  conduct. 
The  applicant  was  provided  an 
opportunity to present  her  case to  an administrative discharge 
board; however, after consulting with her military counsel, she 
waived her right to do so, contingent upon her receipt of no less 
than an honorable discharge.  Although the applicant contends she 
was miscounseled, she has failed to provide sufficient evidence 
to  support  this  contention. 
In  addition,  contrary  to  the 
applicant's  belief,  her  discharge  was  in  accordance  with 
directives in effect at the time of her discharge and it appears 
she  was  provided  all  rights  to  which  entitled.  Although  the 
discharge  notification  letter  indicated  that  she  was  being 
recommended  for  discharge  for  homosexual  conduct,  it  clearly 
indicated the basis for the action was her homosexual statements. 
Regardless, AFI  36-3208  defines  homosexual  conduct  to  include 
acts, statements, and marriages.  The RE code of  '2C"  indicates 
that she was honorably discharged.  The RE code is correct and 
since we find no way that this code is detrimental to her seeking 
employment, we do not recommend changing the RE code.  Therefore, 
in the absence of evidence to the contrary, we find no basis upon 
which  to  recommend  favorable  consideration of  her  request  for 
reinstatement to active duty. 

THE BOAR D RECOMM ENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that on 17 July 1996, 
she was honorably discharged under the provisions of AFI 36-3208, 
paragraph  1.2  (Secretarial  Authority) ,  Separation  Program 
Designator  (SPD)  code 'KFF"  . 

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The following members of the Board considered this application in 
Executiye Session on 14 May 1 9 9 8 ,   under the provisions of AFI 3 6 -  
2603 : 

Ms. Charlene M. Bradley, Panel Chair 
Dr. Gerald B. Kauvar, Member 
Mr. Terry A. Yonkers, Member 
Mr. Phillip E. Horton, Examiner (without vote) 

All  members voted  to correct the records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A. 
Exhibit B . 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G . 
Exhibit H. 
Exhibit I. 
Exhibit J. 
Exhibit K . 
Exhibit L . 
Exhibit M. 
Exhibit N . 
Exhibit 0. 
Exhibit P. 
Exhibit Q. 
Exhibit R . 

DD Form 1 4 9 ,   dated 28  Sep 9 6 ,   w/atchs. 
Applicantis Master Personnel Records. 
Letter, AFPC/DPPRP, dated 24 Oct 9 6 .  
Letter, SAF/MIBR, dated 11 Nov 9 6 .  
Letter, AFBCMR, dated 1 2   Dec 9 6 .  
Letter, Counsel, dated 10 Mar 9 7 .  
Letter, AFBCMR, dated 14 Mar 9 7 .  
Letter, Counsel, dated 8  May 9 7 .  
Letter, AFBCMR, dated 8  May 9 7 .  
Letter, Counsel, dated 1 Jul 9 7 .  
Letter, AFBCMR, dated 9  Jul 9 7 .  
Letter, Counsel, dated 15 Sep 9 7 .  
Letter, Counsel, dated 30  Sep 9 7 .  
Letter, Counsel, dated 14 Oct 9 7 .  
Letter, Counsel, dated 1 7   Nov 9 7 .  
Letter, Counsel, dated 2 1  Nov 9 7 ,   w/atchs. 
Letter, AF/JAG, dated 1 7   Feb 9 8 .  
Letter, SAF/MIBR, dated 1 6   Mar 9 8 .  

CHARLENE M. BRADLEY 
Panel Chair 

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DEPARTMENT OF THE AIR FORCE 

WASHINGTON, 0. C. 

DEC I 11998 

Office of the Assistant Secretary 

AFBCMR 96-02935 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for 

Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code (70A Stat 116), it is directed that: 

cords of the Department of the Air Force relating t- 
cted to show that on 17 July 1996, she was honorably 
of AFI 36-3208, paragraph 1.2 (Secretarial Authority), 
(SPD) code “KFF”. 

Director 
Air Force Review Boards Agency 

0 

E