AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

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JTYPE HON 

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PERSONAL APPEAKANCE 

GRADE 

A l C  

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AFSNISSAN - 

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RECORDREVIEW 

ADDRESS AND OR ORGANIZATION  OF COUNSEL 

MEMBER SITTING 

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HON 

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GEN 

VOTE OF THE BOARD 

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1  OTHER 

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ISSUES 

A01.27 
A01.37 

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INDEX NUMBER 

A46.00 

HEARING DATE 

CASE NUMBER 

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EXHIBITS SUBMITTED TO THE BOARD 

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ORDER APPOINTING THE BOARD 

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1  2  1  APPLlCATION FOR REVIEW OF DISCHARGE 
3  1  LETTER OF NOTIFICATION 
'  COUNSEL'S  RELEASE TO THE BOARD 
1  BRIEF O F  PERSONNEL FILE 

ADDITIONAL EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 

I  TAPE RECORDING O F  PERSONAL APPEARANCE 

I 

10 Oct 2005 
APPLICANT'S ISSI'E hhl, T t E  BOARD'S DECISIONAL  MTlONAL /\RE DISCUSSED ON TIIE ATI'ACIIID AIR  tORCt DISCIIARGE  RtVlliW f3OARD UECISIOXL RATIONA1.E 

FD-2005-00108 

I 

I 

Case heard at Washington, D.C. 

Advise applicant of the decision of the Board, the right to a personal  appearance withlwithout  counsel, and the right to 
submit an application to the AFBCMR. 

Names and votes will be made available to the applicant at the applicant's request. 

SAFIMRBR 
550 C STREET WEST, SUITE 40 
RANDOLPH AFB, TX 78150-4742 

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL 
AIR FORCE DISCHARGE REVIEW BOARD 
1535 COMMAND  DR. EE WING, 3RD FLOOR 
ANDREWS AFB, M D  20762-7002 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2005-00108 

GENERAL:  The applicant  appeals for change the reason  and authority for the discharge and to change the 
reenlistment code. 

The applicant was offered  a personal appearance before the Discharge Review Board (DRB) but  declined to 
exercise this right. 

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. 

FINDINGS:  Change of reason and authority for discharge and change of reenlistment code are denied. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  the  applicant  substantiates  an 
inequity or impropriety that would justify a change of discharge. 

ISSUE: 

Applicant  contends  discharge  was  inequitable  because  of  a  false  accusation  of  his  admission  to 
homosexuality.  He also contends many people  first  asked  if he was homosexual  and  then  accused him  of 
complying  with  an  admission  to  homosexuality--breaking  the  first  rule  of  "Don't  AskIDon't  Tell." 
In 
addition, he alleges he endured many occasions of prejudice, inequity,  bias,  and discrimination.  Lastly, the 
member  states  he was questioned without  any  suggestion  for  a  lawyer  to  assist  him  and  never  given  the 
opportunity to  fully present  his case or himself.  The records  indicated  the  applicant  received  an honorable 
discharge with  the  narrative  reasoning  of homosexual  admission.  The member  was  notified  of  discharge 
action  on  March  7,  2002,  and  scheduled  to  consult  counsel  (Area  Defense  Counsel)  on  March  8,  2002. 
Additionally,  member  consulted  counsel  on  March  15, 2002,  and  submitted  a  conditional waiver  of  his 
rights  to  a board  hearing  contingent  upon receiving  a discharge  characterization no  less  than  an honorable 
discharge. 

AFI  36-3208,  Chapter  5,  Section  G, paragraph  5.36.1  indicates  a basis  for discharge  exists if the  member 
makes  a  statement  that  demonstrates  a propensity  or  intent  to  engage  in  homosexual  acts.  The  applicant 
made  statements that  fit  the  criteria  set  out  in  paragraph  5.36.1.  While  he  denied  such  statements, three 
credible witnesses signed sworn statements asserting that such statements were made.  The characterization 
of the discharge received by the applicant was found to be appropriate. 

CONCLUSIONS:  The  Discharge  Review  Board  concludes  that  the  discharge  was  consistent  with  the 
procedural  and  substantive requirements  of  the  discharge  regulation  and  was  within  the  discretion  of  the 
discharge authority and that the applicant was provided full administrative due process. 

In view of the foregoing findings the Board further concludes that there exists no legal or equitable basis for 
upgrade of discharge, thus the applicant's discharge should not be changed. 

Attachment: 
Examiner's Brief 

AFI36-3208  9 JULY 2004 

85 

working conditions that are often spartan, primitive,  and characterized  by  forced intimacy with  little 
or no privacy. 

5.35.13.  The prohibition  against homosexual  conduct is a long-standing  element of military  law that 
continues to be necessary  in the unique circumstances of military service. 

5.35.14.  The armed forces must maintain personnel policies that exclude persons whose presence in 
the armed  forces would  create an unacceptable  risk to the armed forces' high  standards of morale, 
good order and discipline, and unit cohesion that are the essence of military capability. 

5.35.15.  The presence  in the armed  forces of persons  who demonstrate  a propensity or intent to 
engage  in homosexual  acts would  create an unacceptable risk to the high  standards of morale,  good 
order and discipline, and unit cohesion that are the essence of military capability. 

5.36.  Basis for Discharge: 

5.36.1.  Homosexual conduct  is grounds for separation from the military  service under the terms set 
forth  in  paragraph  5.36.2. Homosex~~al conduct includes homosexual  acts, a statement by a member 
that demonstrates a  propensity or intent to engage in homosexual  acts, or a homosexual marriage or 
attempted  marriage. A  statement by  a member that demonstrates a propensity  or intent  to engage in 
homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but 
because the statement indicates a likelihood that the member engages in or will engage in homosexual 
acts. A member's  sexual orientation  is considered a personal  and private matter, and  is not a bar  to 
continued  service unless manifested  by  homosexual  conduct  in the manner described  in  paragraph 
5.36.2.: 

5.36.2.  A member shall be separated under this section if one or more of the following approved find- 
ings is made: 

5.36.2.1.  The member has engaged  in, attempted to engage in, or solicited another to engage in  a 
homosexual  act or acts, unless there are approved fi~rther findings that: 

5.36.2.1.1.  Such acts are a departure from the member's usual and customary behavior; 

5.36.2.1.2.  Such acts under all the circumstances are unlikely to recur; 

5.36.2.1.3.  Such acts were not acco~nplished by use of force, coercion, or intimidation; 

5.36.2.1.4.  Under  the particular  circumstances of the case, the member's continued  presence 
in the Air Force is consistent with the interest of the Air Force in proper discipline, good order, 
and morale; and 
5.36.2.1.5.  The member does not have a propensity or intent to engage in homosexual acts. 

5.36.2.2.  The member has made a statement that he or she is a homosexual  or bisexual, or words 
to that effect, unless there is a further approved finding that the member has demonstrated that he 
or she is not a person  who engages in,  attempts to engage  in, has a propensity to engage in, or 
intends to engage in homosexual  acts. A statement by a service member that he or she is a homo- 
sexual or bisexual, or words to that effect, creates a rebuttable presumption that the service mem- 
ber  engages in, attempts to engage in, has a propensity  to engage in, or  intends to engage in 
homosexual  acts. The service member shall be advised of this presumption and given the opportu- 
nity to rebut the presumption by presenting evidence demonstrating that he or she does not engage 
in, attempt to engage in, have a propensity  to engage in, or intend  to engage in homosexual  acts. 

86 

AFI36-3208  9 JULY 2004 

Propensity to engage in  homosexual acts means more than  an abstract  preference or desire to 
engage  in  homosexual  acts; it  indicates a  likelihood that a person  engages in or will  engage  in 
homosexual acts. In determining whether a member has successfully rebutted the presumption that 
he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual 
acts, some or all of the following may be considered: NOTE: This list is not exhaustive; any other 
relevant evidence may also be considered: 

5.36.2.2.1.  Whether the member has engaged in homosexual acts. 

5.36.2.2.2.  The member's credibility. 

5.36.2.2.3.  Testimony from others about the member's past conduct, character, and credibility. 

5.36.2.2.4.  The nature and circumstances of the member's statement. 

5.36.2.2.5.  Any other evidence relevant to whether the member  is likely to engage in  homo- 
sexual acts. 

5.36.2.3.  The member has married  or attempted to marry a person  known to be of the same bio- 
logical sex (as evidenced by external anatomy of the persons involved). 

5.37.  Types of Separation. discharge under this section for homosexual conduct may be: 

5.37.1.  Described as an entry level separation  if: 

5.37.1.1.  The airman is in entry level status; and 

5.37.1.2.  Characterization as under other than honorable conditions is not warranted  according to 
paragraph  5.37.3. 

5.37.2.  Characterized as honorable or general according to Chapter I, Section lB, if: 

5.37.2.1.  The airman is not in entry level status; and 

5.37.2.2.  Characterization as under other than honorable conditions is not warranted  according to 
paragraph  5.37.3. 

5.37.3.  Characterized as under other than honorable conditions only if it is found that during the cur- 
rent term of service the airman attempted, solicited, or committed a homosexual act: 

5.37.3.1.  By using force, coercion, or intimidation; 

5.37.3.2.  With a person under  16 years of age; 

5.37.3.3.  With a  subordinate in  circumstances that  violate customary military  superior-subordi- 
nate relationships; 

5.37.3.4.  Openly in public view; 
5.37.3.5.  For compensation; 

5.37.3.6.  Aboard a military vessel or aircraft; or 
5.37.3.7.  In another location subject to military control under aggravating circumstances noted  in 
the finding that  have  an adverse  impact on  discipline, good  order, or morale  comparable to the 
impact of such activity aboard a vessel or an aircraft. 

DEPARTMENT OF THE AIR FORCE 

AIR FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

(Former A1C)  (HGH A1C) 

1.  MATTER UNDER REVIEW:  Appl rec'd a HON Disch fr Langley AFB, VA on 22 Apr 02 
UP AFI 36-3208, para 5.36.2 (Homosexual Admission).  Appeals for a Change to the 
RE Code, and Change the Reason and Authority for Discharge. 

2.  BACKGROUND: 

a. DOB: 16 Jun 81. Enlmt Age: 18 11/12. Disch Age: 20 10/12. Educ: HS DIPL. 

AFQT: N/A.  A-50,  E-62,  G-55,  M-35. PAFSC: 2S031 -  Supply Technician. 
DAS: 27 Nov 00. 

b.  Prior Sv:  (1) AFRes 25 May 00 -  21 Jun 00 (28 days)(~nactive). 

3.  SERVICE UNDER REVIEW: 

a.  Enlisted as AB 22 Jun 00 for 4 yrs. Svd: 1 Yrs 10 Mo 1 Das, all AMS 

b.  Grade Status:  A1C -  22 Oct 01 
Amn  -  22 Dec 00 

c.  Time Lost:  None. 

d.  Art 15's:  None. 

e.  Additional: None. 

f.  CM:  None. 

g.  Record of SV: 22 Jun 80 -  22 Feb 02  Langley AFB  4  (~nitial) 

h.  Awards &  Decs:  AFTR. 

i.  Stmt of Sv:  TMS:  (1) Yrs  (10) Mos  (29) Das 

TAMS:  (1) Yrs  (10) MOS  (1) Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 14 Feb 05. 

(Change Discharge to the RE Code, and Reason and ~uthority for Discharge) 

Issue 1:  I was discharged from the Air Force because of a false accusation 

of my admission to homosexuality.  Many people first, asked me if I was a 
homosexual and then accused me of complying with an admission to homosexuality. 
Breaking the first rule of  "Don't Ask/Donlt tell."  During this period I endured 
many occasions of prejudice, inequality, bias, and discrimination to which any 
American citizen should have never encountered.  I was questioned without any 
suggestion for a lawyer to help me with the matter, and never given the 

opportunity to fully represent my case and myself.  Judgment was passed on me 
based on another persons bias thoughts about myself, and after I was discharged 
I was told that the matter should never have been allowed to progress because it 
was based on accusations and not evidence.  I am asking that my case be reviewed 
and my Narrative reason for discharge/Reentry code be upgraded so that I can 
ultimately be given the justice that was appropriate during my period of 
inequality. 

ATCH 
None. 

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS 1ST FIGHTER WING 

LANGLEY AIR FORCE BASE VA 

FROM:  1 CSICC 

SUBJECT:  Notification Memorandum - Board Hearing 

1.  I am recommending your discharge fiom the United States Air Force for homosexual 
conduct according to AFPD 36-32 and AFI 36-3208, Chapter 5, Section G, paragraph 5.36.2. 
Copies of the documents to be forwarded to the separation authority to support this 
recommendation are attached. 

2. My reasons for this action are: 

On  or  about  27  Sep  01,  you  made  several statements  to  various  individuals  that  indicate  a 
propensity or intent to engage in homosexual acts. 

3.  This action could result  in your  separation with  an  under other than honorable conditions 
discharge.  I  am  recommending  that  you  receive  an  honorable  discharge.  The  commander 
exercising special court-martial jurisdiction or a higher authority will make the final decision in 
this matter.  If you  are discharged, you will be ineligible for reenlistment in the Air Force and 
will  probably be  denied  enlistment in any component of the  armed forces.  Any special pay, 
bonus, or education assistance funds you have received may be subject to recoupment. 

4.  You have the right to: 

(a)  Consult legal counsel. 

(b)  Present your case to an administrative discharge board. 

(c)  Be represented by legal counsel at a board hearing. 

(d)  Submit statements in your own behalf in addition to, or in lieu of, the board hearing. 

(e)  Waive the above rights.  You must consult legal counsel before deciding to waive any of 

your rights. 

5.  Military legal counsel has been obtained to assist you.  I have made an appointment for you 
to  consult  Captain 
Area  Defense  Counsel, 54 Willow  Street, Bldg.  147, 
Ext.  5607 at  --- 10 3b hours  on  5 !-??.:- 
2002.  Instead of the  appointed counsel, you  may 
have  another,  if  the  lawyer  you  request  is  in  the  active  military  service  and  is  reasonably 
available as determined according to AFI 51-201.  In addition to military counsel, you have the 

right  to  employ  civilian  counsel.  The  Air  Force  does  not  pay  expenses  incident  to  the 
employment of civilian counsel.  Civilian counsel, if employed, must be readily available. 

6.  Confer with your counsel and reply, in writing, within 7 workdays, specifying the rights you 
choose to exercise. The statement must be signed in the presence of your counsel who also will 
sign it. If you waive your right to a hearing before an administrative discharge board, you may 
submit written statements in your own behalf. I will send the statements to the discharge 
authority with the case file to be considered with this recommendation. If you fail to respond, 
your failure will constitute a waiver of the right to the board hearing. 

7.  You have been  scheduled for a medical examination.  You must report to the  1 st Medical 
2002.  An 
Group,  Physical  Exam  Section  at 
additional examination will be scheduled if necessary.  You must bring your medical records to 
your scheduled appointment. 

O F   3 0   hours  on  12 H L ~  02 

8.  Any personal information you  furnish in rebuttal is covered by the Privacy Act  of 1974.  A 
copy of AFI 36-3208 is available for your use in the unit orderly room. 

If  you  request  a  board  and  you  fail  to  appear  without  good  cause,  your  failure  to  appear 

9. 
constitutes a waiver of your right to be present at the hearing. 

10.  If you received advanced educational assistance, special pay, or bonuses, and have not 
completed the period of active duty you agreed to serve, you may be subject to recoupment. 

11.  Execute the attached acknowledgment and return it to me immediately. 

Attachments: 
1.  Supporting Documents 

a.  Report of Fact-Finding Inquiry of Homosexual Conduct, dated 6 Nov 01 
b.  AF Form 1168/ Statement of S r A ' g l l l l l l l u  
c.  AF Form 1168/ Statement of SrA 
d.  AF Form 1168/ Statement of A1 C- 
e.  Memorandum from 1 CS/CC, dated 25 Feb 02 

2.  Receipt of Notification Memorandum