RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-02117
COUNSEL:
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
His undesirable discharge be upgraded to honorable.
________________________________________________________________
APPLICANT CONTENDS THAT:
His first enlistment resulted in an honorable discharge.
He enlisted a second time in order to serve his country during a
time of war, and even received a Good Conduct Medal. He was
discharged based on one incident and he never knew who accused
him of homosexuality. He was so ashamed of being labeled a
homosexual that he never gave his full story to anyone.
The most current policy set forth by the Department of Defense
(DoD) has changed so he is finally able to ask for an upgrade to
his discharge.
In support of his request, the applicant provides copies of his
DD Form 214, Report of Separation from the Armed Forces of the
United States and NA Forms 13038, Certification of Military
Service.
The applicant's complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicant joined the Air Force on 2 Mar 1948 and was
honorably discharged on 6 Feb 1950.
On 3 Jan 1951 he reenlisted in the Air Force. On 8 Jun 1954, he
was discharged under the provisions of AFR 35-66, Discharge of
Homosexuals, with an undesirable character of service.
The remaining relevant facts pertaining to this application,
extracted from the applicants military records are contained in
the letter prepared by the appropriate office of the Air Force
at Exhibit B.
________________________________________________________________
AIR FORCE EVALUATION:
Although the record is scant, the available evidence indicates
that the regulations in effect at that time were appropriately
followed, and the actions taken were supported by the evidence.
While the applicant's DD Form 214 does not indicate the
homosexual classification of which he was accused, the
regulations, his statement, and the DD Form 214 indicate this
was most likely a Class II homosexual case.
In his request for an upgrade in characterization, the applicant
stated that at the time he was notified of the discharge, he was
too embarrassed to give his side of the story. His DD Form 214
reflects AFR 35-66 as the reason for discharge with an
undesirable characterization. It is logical to assume that in
1954, he was classified as a Class II homosexual, and that he
signed the statement required by AFR 35-66, agreeing to accept
the undesirable discharge for the good of the service. Class II
homosexuals included cases where individuals willfully engaged
in one or more acts of homosexuality. In Class II cases,
individuals were given a choice: they could submit a signed
statement where they agreed to accept an undesirable discharge
for the good of the service in lieu of further action, or they
could refuse to sign and they would then go before a Board.
Based on the Board's decision, there were three possible
results: they would be retained in the service, discharged with
an honorable or general characterization, or discharged with an
undesirable characterization.
The existing evidence and record supports the conclusion that
the actions taken by the Air Force over 60 years ago complied
with the law, regulations, and policy in effect at that time.
Notwithstanding the preceding statement, DoD policy guidance
issued immediately after the repeal of 10 U.S.C. §654,justifies
a reconsideration of those actions. Thus, while the records
seem to support the conclusion that the actions taken by the Air
Force complied with the law, regulations and applicable policy,
pursuant to the recent DoD policy guidance and after applying
the Discharge Review Boards reviewing parameters, JA is of the
opinion that the applicant's request warrants a re-
characterization of service and a change to the narrative
description. Additionally, the previous discharge
characterization, viewed in conjunction with the regulations in
effect at that time, indicates a lack of any aggravating factors
or other basis for discharge.
The complete JA evaluation is at Exhibit B.
AFPC/DPSOA states although not requested, their office addresses
Reenlistment Eligibility (RE) codes in cases involving
separation under Don't Ask, Don't Tell (DADT) or similar policy.
On 10 Sep 2011, the Under Secretary of Defense issued guidance
to repeal DADT. The guidance stated requests to change the RE
code to 1J should be granted for members separated under DADT
unless there was misconduct present. However, the guidance for
RE codes dated Mar 1954 shows the equivalent of RE code 1J was
"1", as there were no two digit RE codes at that time. If it is
determined a RE code should have been reflected on his DD Form
214, recommend the board direct his RE code to be reflected as
1.
The complete DPSOA evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
On 30 Aug 2012, copies of the Air Force evaluations were
forwarded to the applicant for review and comment within
30 days. As of this date, no response has been received by this
office (Exhibit D).
________________________________________________________________
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 injustice. After a review of
the applicants records, we have surmised he was discharged for
homosexuality. Based on the presumption of regularity in the
conduct of government affairs, and in the absence of evidence to
the contrary, we must assume that the actions taken to effect
the applicants discharge were proper and in accordance with
applicable policy and statute in effect at that time. Based on
the repeal of DADT, the Department of Defense issued policy
guidance that Service Discharge Review Boards should normally
grant requests to re-characterize the discharge to honorable,
when both of the following conditions are 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. Based on our review
of the evidence of record, the applicants discharge meets these
requirements. Therefore, we recommend his records be corrected
as indicated below.
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 issue(s)
involved. Therefore, the request for a hearing is not favorably
considered.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air
Force relating to APPLICANT, be corrected to reflect that on
8 Jun 1954 he was honorably discharged under the provisions of
AFI 36-3208, paragraph 1.2, Secretarial Authority with a
separation code of JFF and a reenlistment eligibility (RE) code
of 1.
________________________________________________________________
The following members of the Board considered this application
in Executive Session on 11 Dec 2012, 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 BC-2012-02117 was
considered:
Exhibit A. DD Form 149, dated 20 May 2012, w/atchs.
Exhibit B. Letter, AFPC/JA, dated 23 Jul 2012.
Exhibit B. Letter, AFPC/DPSOA, dated 28 Aug 2012.
Exhibit D. Letter, SAF/MRBR, dated 30 Aug 2012.
Panel Chair
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