RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-00232
INDEX NUMBER: A46.02, A46.03,
& A57.01
XXXXXXX COUNSEL: NONE
XXXXXXX HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
His Reenlistment Eligibility (RE) code be upgraded.
_________________________________________________________________
THE APPLICANT CONTENDS THAT:
No homosexual acts occurred and the charges against him were based on
hearsay.
In support of the appeal, applicant submits letters of reference, an
article from the Servicemembers Legal Defense Network, and extracts from
his military personnel records regarding the discharge action taken against
him.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant contracted his initial enlistment in the Regular Air Force on 13
August 2002, for a period of six years. On 17 April 2003, he received
notification that he was being recommended for discharge for homosexual
conduct. He was advised the action could result in his separation with an
under-other-than-honorable-conditions (UOTHC) discharge; however, the
commander was recommending he receive an honorable discharge. The reason
for the action was that he attempted to engage in, or solicited another to
engage in a homosexual act. Specifically, that on early-to-mid January
2003, he offered to perform oral sex on a male airman. On 7 May 2003, he
was notified that the discharge notification memorandum was amended to
include the Article 15, imposed on 17 April 2003, for willfully failing to
refrain from frequenting a local hotel, and that several written statements
were added as attachments. After consulting with military counsel, he
waived his rights associated with an administrative discharge board hearing
contingent upon his receipt of an honorable discharge. The discharge
authority accepted his conditional waiver and approved the discharge. He
was honorably discharged on 23 May 2003, under the provisions of AFI 36-
3208 (Homosexual Act), and issued RE code 2C (Involuntarily separated with
an honorable discharge). He had completed a total of 9 months and 11 days
of active service and was serving in the grade of airman first class (E-3)
at the time of discharge.
_________________________________________________________________
AIR FORCE EVALUATIONS:
AFPC/DPPRS recommends the application be denied and states, in part, that
the discharge was consistent with the procedural and substantive
requirements of the discharge regulation and was within the discretion of
the discharge authority. The applicant has not submitted any evidence of
any error or injustices that occurred in the processing of his discharge.
The AFPC/DPPRS evaluation is at Exhibit C.
AFPC/JA recommends the application be denied and states, in part, that the
primary evidence supporting the applicant’s homosexual conduct was not
hearsay and would be admissible in a formal trial or an administrative
discharge board. The statements were from a fellow airman that applicant
had offered to perform oral sex upon him and a second airman that applicant
acknowledged to being a homosexual. Moreover, the validity of the
discharge does not depend upon whether a homosexual act occurred. A
military member who attempts to engage in homosexual acts or solicits
another person to engage in homosexual acts is subject to administrative
discharge. Furthermore, a member who makes a statement that he is
homosexual creates a presumption that he engages in homosexual acts, or
intends to, or has a propensity to do so, and is subject to administrative
discharge.
The AFPC/JA evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
Complete copies of the Air Force evaluations were forwarded to the
applicant on 2 April 2004 for review and response within 30 days. However,
as of this date, this office has received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of error or injustice. We took notice of the applicant's
complete submission in judging the merits of the case; however, we agree
with the opinions and recommendations of the Air Force offices of primary
responsibility and adopt their rationale as the basis for our conclusion
that the applicant has not been the victim of an error or injustice.
Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in this
application.
4. 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 issues 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 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 Docket Number BC-2004-00232
in Executive Session on 1 June 2004, under the provisions of AFI 36-2603:
Mr. Richard A. Peterson, Panel Chair
Mr. James A. Wolffe, Member
Ms. Carolyn B. Willis, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 21 Jan 04, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPRS, dated 15 Mar 04.
Exhibit D. Letter, AFPC/JA, dated 30 Mar 04.
Exhibit E. Letter, SAF/MRBR, dated 2 Apr 04.
RICHARD A. PETERSON
Panel Chair
AF | BCMR | CY2005 | BC-2004-03122
_________________________________________________________________ AIR FORCE EVALUATIONS: AFPC/DPPPWB recommends the applicant’s request to correct her rank on her DD Form 214 be denied. Based on the above finding, and in the absence of evidence of a formal military investigation, we also believe her records should be corrected to show that she was promoted to the grade of staff sergeant effective and with a date of rank of 1 June 2004. Therefore, we recommend her records be corrected to...
AF | BCMR | CY2005 | BC-2004-03533
On 21 June 2000, the applicant submitted an application to the Air Force Discharge Review Board (DRB) requesting his bad conduct discharge be upgraded to honorable. (Exhibit B) _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPRS recommends denial. We note that as an act of clemency the Air Force Discharge Review Board upgraded his discharge to honorable and changed the narrative reason for separation to secretarial authority.
AF | BCMR | CY2004 | BC-2004-02381
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2004-02381 INDEX CODE: 110.00 COUNSEL: None HEARING DESIRED: No _________________________________________________________________ APPLICANT REQUESTS THAT: His uncharacterized entry-level separation be changed to allow him to reenlist into military service. The reason for this action was the applicant made a statement that he was bisexual and requested to be discharged from the Air...
AF | BCMR | CY2004 | BC-2003-03845
Counsel further asserts that because the instruction cited in the reprimand imposed on the applicant under Article 15 was not in effect at the time of the applicant’s alleged misconduct and there was no paragraph 5 as referred to, the reprimand was in error and constituted an erroneous basis for the discharge action subsequently initiated against the applicant. Counsel also asserts that the reprimand imposed on the applicant under Article 15 admonishes the applicant for misconduct that the...
AF | BCMR | CY2004 | bc-2004-00626
The AFPC/DPPRS evaluation is at Exhibit C. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: A complete copy of the Air Force evaluation was forwarded to the applicant on 26 March 2004 for review and response within 30 days. We cannot, however, recommend approval based on the current evidence of record. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the...
AF | BCMR | CY2007 | BC-2007-01791
On 25 Oct 02, applicant applied to the Air Force Discharge Review Board (AFDRB) requesting her discharge to be upgraded to honorable. The Board further concluded that there exists no legal or equitable basis for upgrade of applicant’s discharge to honorable. A copy of the AFDRB findings is attached at Exhibit B.
AF | BCMR | CY2004 | BC-2004-00719
On 26 June 2003, the Air Force Discharge Review Board reviewed and denied the applicant’s request that his discharge be upgraded. The HQ AFPC/DPPRS evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that more than half of the Letters of Counseling occurred over a period of more than four years, and all dealt with reporting late to duty. ...
AF | BCMR | CY2004 | BC-2003-01135
Counsel states that the applicant was not separated because of a pre-existing condition, which was aggravated by active duty service. The majority of the Board believes that the BCMR Medical Consultant’s findings provide a reasonable basis to conclude that the injury to the applicant’s elbow while on active duty was a new and distinct injury rather than EPTS. Given that the applicant disclosed her previous elbow injury during her enlistment physical and was given a waiver, the majority of...
AF | BCMR | CY2004 | BC-2003-03691
Applicant’s grade at time of discharge was airman basic (AB/E-1). Based on available documentation in the file, they found the discharge consistent with the procedural and substantive requirements of the discharge directives in effect at the time of discharge. Having found insufficient evidence of an error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request.
AF | BCMR | CY2004 | BC-2004-03260
On 19 Feb 03, the Wing Staff Judge Advocate found the case file legally sufficient to justify an administrative discharge for failure to maintain dress and personal appearance or military deportment and recommended the applicant be separated with a general discharge, without probation or rehabilitation. On 27 Feb 04, the Air Force Discharge Review Board (AFDRB) considered and denied applicant’s request to have his discharge upgraded. As of this date, no response has been received by this office.