RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00010 

 

 COUNSEL: 

 

 HEARING DESIRED: NOT INDICATED 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His under other than honorable conditions (UOTHC) discharge be 
upgraded to honorable. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT:. 

 

In a 34-page Counsel’s brief, the applicant contends his 
characterization of discharge is unreasonably harsh and is not 
supported by his record. 

 

1) The Board of Inquiry (BOI) failed to follow proper 
administrative procedures, and deprived him of due process when 
they determined his discharge characterization. 

 

2) The characterization of his discharge based upon his alleged 
homosexual conduct was improper in 1993 under the “Don’t Ask, 
Don’t Tell” (DADT) policy guidelines, and would be improper 
today. 

 

 a) His record of outstanding honor and service to his 
country should have weighed in favor of a higher discharge 
characterization, and in the very least, shows that his UOTHC 
discharge was improper especially in light of the recognition of 
homosexual rights that have occurred in the decade since his 
discharge. 

 

 b) Potential changes in law would put a stop to military 
discharges based on sexual preference orientation. 

 

3) His UOTHC discharge characterization based upon 
unprofessional relationships was arbitrary, capricious, and 
improper. The BOI’s findings concerning his so-called 
“unprofessional relationships” were in error, as he never 
demonstrated favoritism or partiality toward his subordinates. 

 

4) His UOTHC discharge characterization failed to reflect his 
honorable character in the Air Force, exemplified in his service 
record and in the recommendations of his superiors. His service 
was nothing short of honorable. Yet his military separation and 
discharge characterization has irreparably harmed him. The BOI 


ignored the greater part of the record before them, discounted 
recommendations of those who knew firsthand the quality of his 
character, work ethic and commitment, in order to recommend him 
for the lowest discharge classification available. 

 

The BOI never considered whether the alleged statements he made 
to the airmen were similar to the alleged statement he made to 
his ex-wife. The BOI, ostensibly on the grounds of waiver, 
allowed his ex-wife to testify to privileged communications 
between him and his wife. Ultimately, she testified that he had 
admitted his homosexuality to her in a private moment during 
their marriage, which bolstered the less-than-credible statements 
of the other main witnesses against him. His ex-wife’s testimony 
proved pivotal to the outcome of the proceedings; in which the 
BOI recommended a UOTHC discharge; and ignored his entire service 
record and the recommendations of his superiors, and belied his 
years of honorable service. 

 

The Air Force did not judge him on his service-related conduct; 
but, rather, on unreliable allegations made concerning his 
alleged sexual orientation. He never made an open statement that 
he was homosexual to a reliable person from whom an investigation 
concerning his alleged “propensity to engage in homosexual acts” 
could rightfully be initiated. 

 

The BOI erred in admitting the testimony of his ex-wife 
concerning his homosexual admission. The initial statement his 
ex-wife gave to investigators was based on a privileged marital 
communication. The BOI allowed his ex-wife to testify against 
him about the privileged marital communication without inquiring 
whether a waiver of the privilege had occurred. The BOI failed 
to consider whether his ex-wife may have felt compelled to 
disclose confidential communications during her marriage or felt 
her maintaining the asserted privilege would have detrimental 
effects on her Air Force career. 

 

The two witnesses, who testified against him, had previously been 
found guilty of providing false statements during their own 
criminal proceedings for fraud and grand theft auto. 

 

Until his ex-wife gave her statements, the Air Force had little 
more than the allegations made by three, less-than-credible 
airmen, with a storied history for making false statements. 

 

The BOI impermissibly invaded the husband-wife privilege as they 
exist under the Military Rule of Evidence (MRE) 504. The BOI not 
only permitted the admission of testimony of unreliable persons 
with specious motives, but it also permitted his ex-wife to 
testify over objection about confidential communications made 
during their marriage. 

 

His discharge characterization is unreasonably harsh because of 
the arbitrary and capricious manner in which this “unwise and 
unjust” policy has been historically applied—a policy whose 


repeal is imminent and for which no rational basis exists to 
support its severe and unjust application in this case. 

 

His discharge characterization shuts the door to business and 
employment opportunities, and invites unwarranted scrutiny into 
his character and fitness as a prospective employee. 

 

Changes in military policies and recognition of the fundamental 
rights of homosexuals in the past decade and near future would 
likely have allowed him to complete his Air Force service. The 
military attitudes about gays and lesbians in uniform have 
changed significantly in the sixteen years since his discharge. 
These shifts have resulted in fairer, more even-handled treatment 
and processing of service personnel discharged under DADT than 
that which he received. As such, equity dictates he should be 
granted a service characterization of honorable to prevent a 
continued injustice. 

 

In support of his request, the applicant provides a 34-page 
counsel’s brief, with 16 attachments. 

 

The applicant's complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant served on active duty in the Air Force from 12 Dec 
86 – 10 Jun 94. 

 

On 18 Nov 92, the applicant received a Letter of Reprimand (LOR) 
for engaging in sodomy on numerous occasions in his off base 
residence with a male enlisted member from his unit; engaging in 
sodomy with two civilian males; admitting to his ex-wife he was 
homosexual; sharing his off base quarters with two enlisted 
members for periods of one month and two weeks, respectively; and 
in the presence of a number of airmen discussed having a 
homosexual group orgy. On 1 Dec 92, an Unfavorable Information 
File (UIF) was established. 

 

On 4 Feb 93, the applicant was notified that his wing commander 
was initiating action against him under the provisions of AFR 
36-2, Chapter 3, Administrative Discharge Procedures - 
Misconduct, Moral or Professional Dereliction; based on the 
following allegations that he; 1) Did during the calendar year 
1992, engage in unprofessional relationships by socializing with 
male airmen at his quarters, 2) Did during Sep 92, engage in an 
unprofessional relationship by allowing an enlisted person to 
share his off base living quarters for a period of approximately 
one month; 3) Did from on or about (o/a) 15 Jun 92, to o/a 2 Jul 
92, engage in an unprofessional relationship by allowing an 
enlisted person to share his off base living quarters and drive 
his private automobile for a period of two weeks; 4) Did during 


calendar year 1992, engage in a sexual relationship with a male 
civilian; 5) Did from o/a 23 Sep 92 to o/a 10 Oct 92, engage in a 
sexual relationship with a male civilian; 6) Did from o/a 15 Jun 
92 to o/a 2 Jul 92, commit sodomy with an enlisted airman; 7) Did 
during calendar year 1991, admit to his then wife, that he was 
homosexual; 8) Did during Jun 92 state to an airman, that he had 
admitted his homosexuality to his wife. 

 

On 4 Feb 93, the applicant acknowledged receipt of the 
notification of action under AFR 36-2 and requested his case be 
processed under AFR 36-2, Chapter 7, and that he intended to 
appear before the BOI with counsel. 

 

A legal review of the proposed discharge was legally sufficient 
to warrant initiation of the discharge action under AFR 36-2. 
The Staff Judge Advocate concurred with the recommendation that a 
UOTHC discharge be given in this case. IAW AFR 36-2, paragraph 
3-2d, when homosexuality is the sole basis for discharge, an 
honorable or general discharge will, as a rule, be issued. 
However, a UOTHC discharge is authorized if the homosexuality in 
question was committed with a subordinate in circumstances that 
violate customary military superior and subordinate 
relationships. 

 

On 20 May 93, a BOI convened, and after considering the evidence, 
found the applicant did engage in conduct in a manner 
incompatible with the necessary standards of professional and 
personal conduct, character, and integrity, as evidenced by 
serious and recurring misconduct. 

 

The BOI determined the applicant should not be retained and 
recommended he be removed from active service with a UOTHC 
discharge. 

 

The BOI was found legally insufficient, and on 13 Jul 93, the Air 
Combat Command (ACC) commander concurred with the BOI’s 
recommendation that the applicant be separated from the Air Force 
with a UOTHC discharge. 

 

On 27 May 94, the Secretary of the Air Force approved the 
applicant’s separation with a UOTHC discharge. On 10 Jun 94, the 
applicant was involuntarily discharged with a UOTHC discharge and 
a separation code of GRA (Homosexual Act) in the grade of 
captain. He served 7 years, 5 months, and 29 days on active 
duty. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation, Clarksburg, West Virginia, indicated that on the 
basis of the data furnished, they were unable to locate an arrest 
record. 

 

_________________________________________________________________ 

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 an injustice. In this 
respect, we note that under today’s standards, credible 
information necessary to conduct an inquiry into alleged 
homosexual conduct must come from a reliable person. In view of 
this, the testimony of the witnesses that testified against the 
applicant during the BOI would not be admissible under today’s 
standards. Moreover, under today’s standards an honorable 
characterization of service is appropriate in the absence of 
aggravating factors. In view of this and since the only 
aggravating factor in the applicant’s record was based on the 
testimony of one of the unreliable witnesses, we find the 
characterization of his service inappropriate. We also note that 
other than this alleged misconduct, the applicant’s record of 
military service is exemplary, as evidenced by his record of 
performance and nature of assignments. Therefore, in view of the 
above, we recommend the characterization of his service be 
upgraded to honorable, the narrative reason for his separation be 
changed to Secretarial Authority, and that he be issued a 
separation code of KFF, in accordance with current Department of 
Defense guidance. 

 

_________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that on 10 June 1994, 
he was honorably discharged, with a narrative reason for 
separation of “Secretarial Authority” and a separation code of 
“KFF.” 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-00010 in Executive Session on 1 Sep 11, 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 Docket Number 
BC-2011-00010 was considered: 

 

 Exhibit A. DD Form 149, dated 1 Dec 10, w/atchs. 

 Exhibit B. Applicant’s Master Personnel Records. 


 

 

 

 

 

 Panel Chair