185 Opinion of the Court The other issues raised by the parties deserve fairly extensive review because of the rather unusual exercise in hindsight by the Air Force in this case. Apparently the plaintiff was a good soldier except for the incidents of homosexuality which formed the basis for his final discharge. He had received citations and good conduct medals, had been selected as "airman-of-the-month" and was a member of an Air Force character guidance council while in Korea during his third enlistment period. Air Force psychiatrists who had examined him in 1952 and in 1956 found that he had no existing homosexual tendencies and advised that he be retained in the service. Incidents of homosexual conduct by the plaintiff which had occurred during prior enlistments had been investigated and reported and he had thereafter been honorably discharged from those enlistments. Plaintiff's testimony before the board of officers convened in 1956 to consider his separation under AFR 35–66 that he had refrained from homosexual conduct since 1953 stands unrebutted. The plaintiff served through three enlistment periods from each of which he received an honorable discharge. He reenlisted in Korea in October 1954 and was subsequently transferred to Shaw Air Force Base, South Carolina. At that post he requested that he be given a national security clearance which resulted in a background investigation being initiated. In the course of the investigation the previously admitted acts of homosexuality again came to light and plaintiff was notified that a board proceeding under AFR 35-66 would be initiated against him. A board of officers was convened for this purpose before which plaintiff and others testified. The findings of the board which were made on March 29, 1956, after the close of proof and oral argument said: Master Sergeant Jesse F. Murray AF 14 073 711, did engage in passive homosexual activities when 17 years old and later twice during 1949 and twice in 1953. The 1949 and 1953 incidents occurred during his second and third enlistments. There was no evidence or finding of any acts of homosexuality after plaintiff's fourth and final en Opinion of the Court 154 Ct. Cl. listment. The board recommended that he be discharged under AFR 35-66 with a general discharge. The first of plaintiff's several objections to the procedure of the board of officers is that it acted beyond its authority in receiving evidence of homosexual conduct during previous enlistments terminated by honorable discharge. He relies for support for his position on Harmon v. Brucker, supra, wherein the court said, in referring to the reliance of the Secretary of the Army on pre-induction activities in issuing the less than honorable discharges: We think the word "records", as used in the statute, means records of military service, and that the statute, properly construed, means that the type of discharge to be issued is to be determined solely by the soldier's military record in the Army.1 The Court held that the consideration of pre-induction activities as a basis for less than honorable discharge could not be sustained in law and remanded the case to the District Court. Everyone discharged from the military service must be furnished with a discharge certificate, with authority to issue them delegated to the appropriate Secretary.2 In the Harmon case, the Army's construction of the statutory grant of power was found by the Court in paragraphy 2(b) of Army Regulation 615-375, where it is stated that "[t]he purpose of a discharge certificate is to record the separation of an individual from the military service and to specify the character of service rendered during the period covered by the discharge." (Emphasis supplied.) Air Force Regulation 39-10, dated October 27, 1953, which pertained to the general provisions covering certain discharges and which was in effect at the time of plaintiff's discharge, provides that an honorable discharge certificate will be furnished when an airman has satisfied certain criteria. "during his current period of service." (Emphasis sup 1 The statute referred to by the Court was Title 38 U.S.C. § 693 (h) (1952 Ed.) which created boards authorized to review actions of the service Secretaries. Under the statute, the findings of these boards "shall be based upon all available records of the service department relating to the person requesting such review * " Title 10 U.S.C. § 652 (a) (1952 Ed.). 185 Opinion of the Court plied.) These criteria include approved character and efficiency ratings and freedom from conviction of a serious offense by court-martial during the current enlistment. We think that by analogy to the Harmon case, the type of discharge to be issued in this case is to be determined solely by plaintiff's military record during his current enlistment. The record is clear that during plaintiff's "current period of service," from his final enlistment on August 21, 1954, until his final discharge on May 9, 1956, his service measured up to the standards required for honorable discharge as set forth in the regulation. In addition to his regular duties, he served as a member of an Air Force character guidance council in Korea, and was also selected as "airman-of-themonth" and was awarded a one week paid vacation in Hong Kong. Special publicity was accorded to plaintiff's reenlistment by an article and picture in the Fifth Air Force newspaper circulated in the Pacific area. Plaintiff was therefore, on his record of current service, entitled to an honorable discharge. Having chosen to institute proceedings for his untimely discharge, the Air Force is bound by its own regulations. Service v. Dulles, 354 U.S. 363 (1957); Watson v. United States, 142 Ct. Cl. 749 (1958). Since action under AFR 39-10 confines the scrutiny of an airman's qualification for honorable discharge in this type of situation to his current enlistment, plaintiff's separation under AFR 35-66 with a less than honorable discharge based solely on evidence and findings of misconduct during prior enlistments, was in violation of Air Force regulations. Since we hold as we do respecting the validity of plaintiff's final discharge it is unnecessary to discuss other allegations of irregularity of proceedings raised by him. Plaintiff is entitled to recover pay and allowances from the date of his discharge, May 9, 1956, until August 20, 1960, the date on which his final six year enlistment would ordinarily have expired. He has also claimed that in addition to, or in lieu of, active duty pay he should receive disability retired pay because of a service incurred disability. There AFR 39-10 incorporates the provisions of AFR 35-66, if applicable, by reference. However, paragraph 6 of the latter regulation specifically permits the granting of an honorable discharge in cases like the present one, even if proceedings are conducted under AFR 35–66. Findings of Fact 154 Ct. Cl. is no evidence that plaintiff ever raised this issue before filing his petition in this court, nor do we have any competent evidence of disability or right to compensation based thereon. All that plaintiff ever requested the various Air Force boards to do was to change his general discharge to an honorable one and to delete all references to AFR 35-66. That portion of his petition relating to disability retired pay is, therefore, dismissed. In addition to the back pay and allowances referred to above, the plaintiff is entitled to recover $391.54, accrued credits improperly withheld by the defendant at the time of his discharge as a purported recoupment of part of his final reenlistment bonus. And, for the same reasons, the defendant's counterclaim asserted for the allegedly unearned portion of the reenlistment bonus is dismissed. Based on the foregoing findings and conclusions, judgment will be entered for the plaintiff with the amount of recovery to be determined pursuant to Rule 38 (c). It is so ordered. REED, Justice (Ret.), sitting by designation; Laramore, Judge; MADDEN, Judge; and JONES, Chief Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Roald A. Hogenson, and the briefs and argument of counsel, makes findings of fact as follows: 1. Plaintiff is a citizen of the United States and resident of Durham, North Carolina. The date of his birth was August 17, 1909. 2. Plaintiff served as an enlisted man in the United States Army from April 29, 1942, to October 28, 1945, when he was honorably discharged as a staff sergeant and reentered civilian life. During the period from July 27, 1947, to November 21, 1948, he was enrolled in an inactive status in the United States Air Force Reserve. He thereafter served an enlistment in the Air Force as a staff sergeant from November 22, 1948, to January 26, 1950, when he was honorably discharged. Reenlisting in the Air Force on January 27, 1950, plaintiff served in the successive grades of staff sergeant, technical sergeant and master sergeant until August 185 Findings of Fact 20, 1954, when he was again honorably discharged. Reenlisting again in the Air Force on August 21, 1954, he served as a master sergeant until May 9, 1956, when he received a general discharge pursuant to Air Force Regulation 35-66, the validity of which discharge is challenged by plaintiff in this case. Throughout his military career, plaintiff was officially rated as excellent or superior in both character and efficiency. Plaintiff's last enlistment on August 21, 1954, as provided in the enlistment form, was for six years "under the conditions prescribed by law, unless sooner discharged by proper authority," and his normal separation date would have been August 20, 1960. 3. Under date of December 28, 1951, two applicants for enlistment in the Air Force, Bobby D. Hedgepeth and Rex B. Howard, and one enlisted man in the Air Force, Remus E. Adams, executed sworn statements before Air Force Major John D. Moxley, plaintiff's commanding officer, to the effect that plaintiff had made statements to them concerning homosexual conduct. Hedgepeth and Howard stated that on December 27, 1951, plaintiff had suggested to them that they submit to fellatio to be performed by a man at Raleigh, North Carolina. Adams stated that he had worked with plaintiff in the service for 15 months, that plaintiff had always talked about fellatio, and in his presence had asked prospective recruits how long it had been since they had had fellatio performed upon them. Adams was a master sergeant assigned to the Recruiting Station at Raleigh, North Carolina, where plaintiff was assigned. Adams further stated that Hedgepeth and Howard had informed him of the statements made to them by plaintiff on December 27, 1951, and that he had immediately reported the complaints of applicants Hedgepeth and Howard to Captain Johnson, Recruiting Officer of the Raleigh Recruiting Station. 4. As a result of these complaints, plaintiff was on December 28, 1951, with his consent hospitalized for psychiatric observation at the U.S. Army Hospital, Fort Bragg, North Carolina. Under date of January 18, 1952, Dr. Melvin Shulman, 1st lieutenant, M.C., a psychiatrist, made the following report of psychiatric examination: |