RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-04408
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His undesirable discharge be upgraded to an honorable discharge.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was charged with being a homosexual. However, being
homosexual is no longer a reason to be discharged. He needs his
discharge upgraded for veterans benefits.
In support of his appeal, the applicant provides a copy of his DD
Form 214, Armed Forces of the United States Report of Transfer or
Discharge.
The applicants complete submission, with attachment, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 16 Feb 60, the applicant contracted his enlistment in the
Regular Air Force.
On 15 Apr 63, the applicants commander notified him that he was
recommending his discharge from the Air Force as a Class II
homosexual. The specific reason for the discharge action was on
or about 28 Mar 63, he engaged in homosexual acts with other
service members.
His commander advised him of his rights in this matter. On
15 Apr 63, after consulting with legal counsel, the applicant
waived his right to a board hearing.
In the recommendation for discharge dated 23 Apr 63, the
applicants commander recommended he be furnished a general
discharge based on his exemplary service.
On 15 May 63, the discharge authority directed the applicant be
furnished an undesirable discharge. On 22 May 63, he was
furnished an under other than honorable conditions (UOTHC)
discharge and was credited with three years, three months, and
seven days of total active service.
On 20 Sep 11, the law commonly known as Dont Ask, Dont Tell
(DADT), 10 USC 654 was repealed. The Department of Defense
subsequently issued guidance indicating that Service Discharge
Review Boards (DRB) should normally grant requests to change the
narrative reason for a discharge, requests to re-characterize the
discharge to honorable, and/or requests to change the reentry code
when both of the following conditions were 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.
Pursuant to the Boards request, the Federal Bureau of
Investigation (FBI) provided a copy of an Investigative Report,
which is at Exhibit C.
On 3 Apr 12, a copy of the FBI Investigative Report and a request
was for post-service information was forwarded to the applicant
for review and comment within 30 days (Exhibit D). As of this
date no response has been received by this office.
_________________________________________________________________
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. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice. The
applicant contends that his discharge should be upgraded to
honorable due to the repeal of the provisions of 10 USC 654,
commonly known as Dont Ask, Dont Tell (DADT). After a
thorough review of the evidence of record and the applicants
complete submission, we are not convinced he has been the victim
of an error or injustice. In this respect, we note that while
the repeal of DADT provides a basis for correcting the records of
certain affected service members, specific criteria must
generally be met: (1) the original discharge must have been based
solely on DADT or a similar policy in place prior to enactment of
DADT and (2) there must be no aggravating factors in the record,
such as misconduct. The circumstances of the applicants
discharge do not meet these criteria. The applicant was
furnished an under other than honorable conditions (UOTHC)
discharge due to substantiated misconduct on his part.
Therefore, the repeal of DADT does not provide an adequate basis
for us to recommend granting the requested relief. We also
considered upgrading the applicants discharge on the basis of
clemency; however, in the absence of any information related to
the applicants activities since leaving the service, we find no
basis to grant the requested relief on clemency. In view of the
fact that his misconduct formed the basis of his UOTHC discharge,
and in the absence of any evidence to that his commander abused
his discretionary authority, he was denied rights to which he was
entitled, or the discharge was not carried out in accordance with
the provisions of the governing regulations, we find no basis to
recommend granting the requested relief.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material error or injustice; the
application was denied without a personal appearance; and 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 AFBCMR Docket
Number BC-2011-04408 in Executive Session on 5 Jun 12, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 8 Nov 11, w/atch.
Exhibit B. Applicant's Master Military Personnel Records.
Exhibit C. FBI Investigative Report.
Exhibit D. Letter, AFBCMR, dated 3 Apr 12, w/atchs.
Panel Chair
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