RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-02142
		COUNSEL: 
		HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded. 

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was discharged solely for being gay.  The previous statement 
that “Homosexuality is incompatible with Military Service” is 
now no longer punishable and even “Don’t Ask Don’t Tell” (DADT) 
has been repealed.  

He is unemployed and his current status may impact his ability 
to qualify for Federal jobs. 

In support of his request, the applicant provides copies of his 
DD Forms 214, Report of Separation from Active Duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 18 Jul 72, the applicant enlisted in the Regular Air Force. 

On 18 Aug 78, the applicant failed to report back to his duty 
section for the remainder of the duty day.  For this misconduct, 
he was given a record of counseling and advised that any future 
actions of this nature would not be tolerated. 

On 5 Dec 78, the applicant was notified by his commander that he 
was recommending his discharge from the Air Force under the 
provisions of AFM 39-12, Separation for Unsuitability, 
Misconduct, Resignation, or Request for Discharge for the Good 
of the Service and Procedures for the Rehabilitation Program, 
specifically, for Acts of Sexual Perversion.  The applicant 
acknowledged receipt of the discharge notification.  

On 12 Dec 78, the applicant, after consulting with counsel, 
waived his right to present his case to an administrative 
discharge board, conditioned upon the issuance of an honorable 
discharge.  
By undated letter, the 42d Combat Support Group commander 
(42 CSG/CC) reviewed the applicant’s administrative discharge 
case; disapproved his conditional waiver, and directed an 
administrative discharge board convene.

On 14 Feb 79, an administrative discharge board convened to 
determine whether or not the applicant should be discharged for 
sexual perversion.  After considering the evidence of record, a 
majority of the board found, by a preponderance of the evidence, 
the applicant had committed the alleged offense and recommended 
he be discharged for misconduct, with a general (under honorable 
conditions) characterization of service and that he not be 
offered rehabilitation opportunities with a conditional 
suspension of his discharge.  The board considered 
rehabilitation inappropriate because the applicant’s commander 
did not recommend probation and/or rehabilitation, the applicant 
(through counsel) indicated a non-preference for any probation, 
and the type of offense was not considered by the board to be 
rehabilitative. 

On 1 Mar 79, the applicant wrongfully programmed unauthorized 
information into a B3500 computer.  For this misconduct, he 
received an Article 15, Uniform Code of Military Justice (UCMJ) 
with punishment consisting of reduction to the grade of sergeant 
and forfeiture of $100.00 pay. 

On 7 Mar 79, the Staff Judge Advocate reviewed the Record of 
Administrative Discharge Board proceedings and found it legally 
sufficient to support discharge with a recommendation to the 
42 CSG/CC that the applicant be discharged for misconduct, with 
a general discharge without probation and rehabilitation. 

On 15 Mar 79, the applicant was discharged with service 
characterized as general (under honorable conditions) in the 
grade of sergeant.  He served 6 years, 7 months and 28 days of 
total active service. 

On 15 Nov 81, the applicant submitted a DD Form 149, Application 
for Correction of Military or Naval Record; requesting his 
general (under honorable conditions) discharge be upgraded to 
honorable; information regarding allegations of homosexuality or 
homosexual conduct be removed from the Office of Special 
Investigation or other agencies files and be forwarded to him; 
return all original negatives, prints and copies that were used 
as evidence against him; his recorded be amended to reflect the 
grade of staff sergeant; the order to bar him from the base be 
terminated, and an investigation into the Administrative 
Discharge Board proceedings. 

On 21 Dec 81, the applicant was notified that his application 
for review of discharge and military records was forwarded to 
the Air Force Discharge Review Board (AFDRB) of the Secretary of 
the Air Force Personnel Council (SAFPC) for action.

On 4 May 82, the AFDRB convened and concluded that the 
applicant’s discharge was consistent with the procedural and 
substantive requirements of the discharge regulation, was within 
the sound discretion of the discharge authority, that the 
applicant was provided full administrative due process, and that 
his discharge should not be changed. 

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSOR recommends denial of the applicant’s request to 
change his character of service.  However, they recommend the 
applicant’s narrative reason for separation be changed to 
“Secretarial Authority” and his Separation Program Designator 
(SPD) code be changed to “JFF.” 

“Effective 20 Sep 11, Service Discharge Review Boards (DRBs) 
should normally grant requests to change the narrative reason 
for a discharge (the change should be “Secretarial Authority,” 
Separation Program Designator (SPD) code “JFF,” requests to re-
characterize the discharge to honorable, and/or requests to 
change the reentry (RE) code to an immediately-eligible-to-
reenter category (the new RE code should be 1J) when both of the 
following conditions are met: 1) the original discharge was 
based upon 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.  Although each request must be evaluated on 
a case-by-case basis, the award of an honorable or general 
discharge should normally be considered to indicate the absence 
of aggravating factors.”  

DPSOR states the applicant was discharged for frequent 
participation in homosexual activities.  Although the discharge 
was properly processed according to the applicable regulation, 
the applicant’s discharge record indicates his discharge was 
based on DADT and aggravating factors. 

The complete DPSOR evaluation is at Exhibit C.

AFPC/DPSOA recommends denial of a change to his Reenlistment 
(RE) code.  On 10 Sep 11, the Under Secretary of Defense issued 
guidance related to the repeal of DADT.  The guidance states 
that requests to change the RE code to 1J, which denotes 
“eligible to reenlist-elected separation or discharge” should be 
granted for members separated under DADT unless there were 
aggravating factors or misconduct present.  It is evident the 
applicant had disciplinary problems as supported by his 9 Mar 
79, Article 15, UCMJ.  

The complete DPSOA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 23 Aug 13, for review and comment within 30 days.  
As of this date, this office has not received a response 
(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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, we find no evidence of an error or 
injustice in the discharge processing to warrant upgrading his 
discharge to honorable.  Therefore we agree with the opinions 
and recommendations of the Air Force offices of primary 
responsibility and adopt the rationale expressed as the basis 
for our conclusion the applicant has not been the victim of an 
error or injustice.  We note the applicant states he was 
discharged for being gay and is requesting relief under the DADT 
policy.  However, in a memorandum, dated 20 Sep 11, the Under 
Secretary of Defense published guidance that states the 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.  We considered upgrading the 
applicant’s discharge based on the repeal of DADT; however, the 
evidence reflects that there was misconduct.  In this respect, 
we note that after the applicant was notified that this 
commander was initiating discharge action against him, the 
applicant received an Article 15, for wrongfully programming 
unauthorized information into a computer and was reduced to the 
grade of sergeant and ordered to forfeit $100.00.  In view of 
this we find no basis to recommend granting the applicant’s 
request to upgrade his discharge to honorable under the DADT 
policy.  In the interest of justice, we also considered 
upgrading the discharge based on clemency; however, the 
applicant provides no evidence to compel us to recommend 
granting the relief sought on that basis.  Therefore, in view of 
the above and in the absence of evidence to the contrary, we 
find no basis upon which to recommend granting the relief 
sought.  

4. Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an injustice.  
After carefully reviewing this application, we agree with the 
opinion and recommendation of DPSOR and adopt the rationale 
expressed as the basis for our decision that the applicant has 
been the victim of an injustice.  Accordingly, we recommend his 
records be corrected to the extent indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT, be corrected to show that on 
15 March 1979, he was discharged with a narrative reason for 
separation of “Secretarial Authority,” and issued a separation 
code of “JFF.” 

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-02142 in Executive Session on 4 and 5 Mar 14, 
under the provisions of AFI 36-2603:

	 			Panel Chair
      Member
				Member

All members voted to correct the records, as recommended.  The 
following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 29 Apr 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOR, dated 3 Jul 13.
	Exhibit D.  Letter, AFPC/DPSOA, dated 7 Aug 13. 
	Exhibit E.  Letter, SAF/MRBR, dated 23 Aug 13.