RECORD OF PROCEEDINGS 

 

Board 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

DOCKET NUMBER: BC-2012-01565 
COUNSEL:   
HEARING DESIRED:  NO 
 

 
IN THE MATTER OF: 
 
  XXXXXXXXXX 
 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
1.  His  under  other  than  honorable  conditions  characterization 
of service be changed to honorable. 
 
2.  His  undesirable  discharge  certificate  be  changed  to 
honorable.   
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
In  a  combined  17  page  brief,  the  applicant  and  counsel  present 
the following contentions:   
 
a.  Although  the  applicant  attests  that  he  never  engaged  in 
homosexual  activities,  he  was  labeled  a  “Class  II”  homosexual 
and  discharged  from  the  Air  Force  with  an  under  other  than 
honorable  conditions  characterization  of  service  and  an 
undesirable discharge certificate. 
 
b.  The military has changed its policy on sexual orientation as 
well  as  its  policy  regarding  the  issuance  of  discharge 
characterizations.    In  light  of  these  changes,  it  is  grossly 
unjust  for  the  applicant  to  be  forced  to  retain  a  discharge 
characterization of under other than honorable conditions and an 
undesirable discharge certificate.   
 
discharge 
should 
c.  The 
characterization  to  honorable  as  an  equitable  relief  in  the 
interest of justice.    
 
d.  Although  the  applicant  has  been  aware  of  his  discharge 
characterization since his separation, he only became aware of a 
possible injustice associated with his discharge upon the repeal 
of  the  policy  commonly  known  as  Don’t  Ask,  Don’t  Tell  (DADT), 
which  took  place  on  20  September  2011.    Therefore,  while  more 
than three years have passed since the applicant discovered the 
basis  for  the  undesirable  discharge  and  under  other  than 
honorable 
the 
characterization 
application is filed in a timely manner.   
 

conditions 

change 

the 

applicant’s 

of 

service, 

e.  In  the  alternative,  if  the  Board  considers  the  applicant’s 
date  of  discovery  to  be  that  on  which  he  first  saw  his 
undesirable and under other than honorable conditions discharge 
characterization, it is the interest of justice for the Board to 
waive the three-year time limit pursuant to its powers under 32 
C.F.R.,865.3(f)(1). 
 
In support of his request, the applicant provides copies of his 
counsels’  brief,  his  DD  Form  214,  Armed  Forces  of  the  United 
States Report of Transfer or Discharge, documents extracted from 
his military personnel records, and documents pertaining to the 
Repeal of Don’t Ask Don’t Tell.   
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A.  
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
According  to  his  DD  Form  214,  and  documents  extracted  from  his 
military  personnel  record,  the  applicant  is  a  former  member  of 
the  Regular  Air  Force  who  enlisted  on  26  April  1957  and  was 
progressively  promoted  to  the  grade  of  Airman  Third  Class  with 
an effective date of pay grade of 13 July 1957.   
 
On  3  October  1958,  the  commander  notified  the  applicant  of  his 
intent  to  discharge  him  from  the  Air  Force  with  an  undesirable 
discharge under the provisions of Air Force Regulation (AFR) 35-
66,  Discharge  of  Homosexuals.    Specifically,  the  evidence 
contained  in  an  investigation  file  appeared  to  warrant 
classifying the applicant as a Class II Homosexual.   
 
On  3  October  1958,  the  applicant  acknowledged  receipt  of  his 
commander’s  intent  to  discharge  him  and  his  entitlement  to  an 
impartial  hearing  by  a  board  of  officers,  entitlement  to 
counsel,  and  to  present  evidence  and  call  witnesses  on  his 
behalf.    The  applicant  waived  his  right  to  appear  before  the 
board  and  requested  discharge  without  the  benefit  of  board 
proceedings  and  additionally,  did  not  avail  himself  of  legal 
counsel.  However, on 27 October 1958 he requested permission to 
speak to a legal officer and availed himself of legal counsel on 
that same day. 
 
On  12  November  1958,  the  applicant  received  an  Article  15 
nonjudicial  punishment  for  violation  of  Article  86,  Absence 
without  Leave,  of  the  Uniform  Code  of  Military  Justice  (UCMJ) 
for  failure  to  go  to  his  appointed  place  of  duty  at  the  time 
prescribed  on  8  November  1958.    His  punishment  consisted  of  a 
reduction in grade to Airman Basic (AB), E-1.   
 
On  5  December  1958,  the  applicant  was  tried  by  summary  court-
martial for a second violation of Article 86, in that he failed 
to go to his appointed place of duty at the prescribed time on 

 

 

or  about  4  December  1958.    The  applicant  pled  guilty  and  was 
found guilty.  He was sentenced to restriction to the limits of 
the  base  for  60  days  and  forfeit  of  $60.00.    The  sentence  was 
approved and ordered executed on 5 December 1958.   
 
The  applicant  was  discharged  effective  9  February  1959  and  was 
credited  with  1  year,  9  months  and  14  days  of  active  duty 
service.    His  grade  at  the  time  of  discharge  was  airman  basic 
with an effective date of 12 November 1958.   
 
Pursuant  to  the  Board’s  request,  the  Federal  Bureau  of 
Investigation  (FBI)  provided  a  copy  of  an  Investigative  Report 
which is at Exhibit C.   
 
On 19 September 2012, a copy of the FBI Investigative report was 
forwarded to the applicant along with a request for post service 
documentation  for  review  and  comment  within  30  days.    Four 
letters  of  recommendation  were  received,  through  counsel,  on 
2 January 2013 (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.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  an  injustice.    In  light  of  the 
repeal  of  Don't  Ask,  Don't  Tell  (DADT)  and  in  accordance  with 
the  Under  Secretary  of  Defense  (Personnel  and  Readiness) 
guidance  memorandum,  Correction  of  Military  records  Following 
Repeal  of  Section  654  of  Title  10,  United  States  Code,  dated 
20 September 2011, 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  and  in  view  of  the  Article  15  and  Special 
Court  Martial  actions,  we  do  not  recommend  upgrading  his 
discharge  to  fully  honorable  but  rather  to  general  (under 
honorable conditions).  Therefore, we recommend the applicant's 
record be corrected as indicated below. 
 
________________________________________________________________ 
 
THE BOARD RECOMMENDS THAT: 
 
1.  The pertinent military records of the Department of the Air 
Force  relating  to  APPLICANT  be  corrected  to  show  that  on 

 

 

rather 

 
 

 
 

as 
than 

“general, 
“under 

other 

(under 
than 

characterized 

9 February  1959,  he  was  discharged  with  a  narrative  reason  for 
separation  of  “Secretarial  Authority,”  rather  than  “Homosexual 
Conduct,” and a separation code of “JFF,” rather than “HRA, with 
service 
honorable 
conditions),” 
honorable 
conditions.   
 
________________________________________________________________ 
 
The  following  members  of  the  Board  considered  this  application 
in  Executive  Session  on  14  November  2012  and  7  January  2013, 
under the provisions of AFI 36-2603: 
 
 
 
 
The  following  documentary  evidence  pertaining  to  AFBCMR  Docket 
Number BC-2012-01565 was considered: 
 
    Exhibit A.  DD Form 149, dated 15 March 2012. 
    Exhibit B.  Applicant’s Master Personnel Records. 
    Exhibit C.  FBI Report  
    Exhibit D.  Letter, AFBCMR dated 19 September 2012. 
    Exhibit E.  Letter APPLICANT, dated 15 October 2012, 
 
 
 
 
 
 

, Panel Chair 
, Member 
, Member 

 
Panel Chair 

w/atchs.