RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00350
            INDEX CODE:  110.00

            COUNSEL:  MICHAEL E. WILDHABER

            HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be changed  to  honorable
and change his reason for discharge to expiration  of  term  of  service  or
some similar non-punitive reason.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel states that the applicant’s discharge  should  be  upgraded  because
under  current  standards  a  service  member’s  sexual  orientation  is   a
“personal and private matter” not properly the subject of official  inquiry.
  Therefore,  assuming  he  did  not  reveal  it,  the  applicant’s   sexual
orientation or prior homosexual conduct would not have been a factor in  his
acceptance and retention for military service.  His reason for discharge  is
unfairly stigmatizing, and on grounds of equity  it  should  be  changed  to
“expiration of term of service” or some other non-punitive reason.

Under current standards he would not have been asked  at  the  time  of  his
enlistment whether he had ever engaged  in  homosexual  activity,  and  thus
would not have been accused of making a false statement  on  his  enlistment
application.  He would not have experienced the  severe  anxiety  caused  by
the conflict between his sexual orientation and continued military  service.
 This severe anxiety led him to affirmatively inform his commanding  officer
that  he  had  engaged  in  homosexual  activity  in  order  to  clear   his
conscience.  His discharge should  be  upgraded  based  on  his  outstanding
service record, which is exemplified by the excellent  reviews  he  received
from his superior officers, his awards and promotions, and  the  absence  of
any disciplinary action against him (other than that which  was  related  to
his sexual orientation).  His post-service conduct, including  his  absolute
integrity and professionalism as a businessman, generosity in  donating  his
time and money to  local  non-profits,  and  participating  in  his  church,
further makes an upgrade of his discharge equitable and appropriate.

In support of his appeal, the applicant provided a  brief,  a  copy  of  his
Declaration, character references and other documentation.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant’s military records, are contained in the  Brief  prepared  by  the
Examiner for the Air Force  Discharge  Review  Board  (AFDRB)  (Exhibit  B).
Accordingly, there is no need to  recite  these  facts  in  this  Record  of
Proceedings.

Applicant’s requests for an upgrade of discharge and a change in the  reason
for discharge were denied by the AFDRB on 26 January 1996.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Washington, D.C., indicated that they were unable to  identify  with  arrest
record on basis of information furnished.  (Exhibit C.)

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AIR FORCE EVALUATION:

The Personnel Management  Specialist,  Separations  Branch,  HQ  AFPC/DPPRP,
reviewed this application and states that this case has  been  reviewed  for
separation processing and there are no errors or irregularities  causing  an
injustice  to  the  applicant.   While  current  policy   precludes   asking
prospective  service  members  about  their  sexual  orientation,  Title  10
U.S.C., Section 654,  clearly  states  the  prohibition  against  homosexual
conduct in the armed forces, and a member  of  the  armed  forces  shall  be
separated from the armed forces if that member has  engaged  in  homosexuals
acts.  A member today who admits his/her homosexual orientation  and  admits
to engaging in homosexual acts will be separated.  The  discharge  narrative
reason of misconduct complies with AFR  36-12  and  DOD  Instructions.   The
characterization of service is according to the directives in effect at  the
time of his discharge.  The applicant signed a statement acknowledging  that
if his resignation was accepted  he  would  be  discharged  with  a  general
discharge unless the Secretary of the Air Force determined that he would  be
honorably discharged.  The records indicate member’s  military  service  was
reviewed and appropriate action was taken.  The applicant did  not  identify
any  specific  errors  in  the  discharge  processing  nor   provide   facts
warranting a change in his characterization of service  or  the  reason  for
his discharge.  Therefore, they recommend denial of applicant’s request.



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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant  reviewed  the  evaluation  and  states  that  the
action officer offers nothing that would warrant  the  Board  not  providing
applicant the relief that he  seeks.   It  does  not  offer  a  particularly
thoughtful or thorough analysis of the case.  It does  not  discuss  any  of
the numerous positive  aspects  of  the  veteran’s  service,  including  his
accomplishments as  a  pilot  and  contributions  to  the  mission  success,
especially during operations in Grenada in 1983.

The action officer does rehash applicant’s single mistake that  led  to  his
discharge.  He does  not  give  the  applicant  credit  for  having  stepped
forward to admit his mistake, which he did then and now.  He  has  attempted
to explain the extreme mental and emotional anguish that he  experienced  at
the time of his mistake, which be believes should mitigate the mistake  now,
after nearly 15 years of living with the stigma and disgrace it has  caused.


In addition, there is no  merit  to  the  action  officer’s  statement  that
applicant’s application is untimely since it was  received  at  SAF/MIBR  on
February 5, 1999, three years exactly from the date of his 1996  DRB  denial
decision.

Applicant requests that the Board instead take a more  positive  perspective
and grant him the relief he seeks  in  consideration  of  his  overall  good
service record, good post-service conduct, and the passage of time.

Counsel complete response is attached at 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.     We  find  no  impropriety  in  the  characterization  of  applicant's
discharge.   It  appears  that  responsible  officials  applied  appropriate
standards in effecting  the  separation,  and  we  do  not  find  persuasive
evidence that pertinent regulations were violated or that applicant was  not
afforded all the rights to which entitled at  the  time  of  discharge.   We
conclude,  therefore,  that  the  discharge  proceedings  were  proper   and
characterization  of  the  discharge  was  appropriate   to   the   existing
circumstances.

4.    We also find insufficient evidence to warrant  a  recommendation  that
the discharge be upgraded on the basis  of  clemency.   We  have  considered
applicant's overall quality of service, the events  which  precipitated  the
discharge, and available evidence related  to  post-service  activities  and
accomplishments.  On balance, we do not believe that clemency is warranted.

5.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 23 September 1999, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 January 1999, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, HQ AFPC/DPPRP, dated 26 April 1999.
      Exhibit D. Letter, SAF/MIBR, dated 17 May 1999.
      Exhibit E. Letter, Applicant, dated 14 June 1999.




                             RICHARD A. PETERSON
                             Panel Chair