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AF | BCMR | CY2003 | BC-2003-02548
Original file (BC-2003-02548.doc) Auto-classification: Denied


                       RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02548

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His court martial conviction records reflect simple assault only.

_________________________________________________________________

APPLICANT CONTENDS THAT:

When  he  was  finger  printed  for  a  job  with  the  Department  of
Corrections, the results  showed  an  assault  with  a  deadly  weapon
conviction on his record from 1998.

In support of his application, he submits a copy of DD  Form  497,  DD
Form  214,  AF  Form  1359  and  State  of  California  Peace  Officer
Examination form.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
23 April 1997.  He completed his required active service by completing
3 years, 11 months and 24 day of total active military service.

On 16-17 July 1998, the applicant was court-martialed for assault with
a dangerous weapon, in violation of Article 128.  He was found  guilty
of the lesser-included offense of simple assault by pointing  a  semi-
automatic weapon, and sentenced to 75 days confinement  and  reduction
to airman basic.  The applicant successfully  completed  his  tour  of
service and separated voluntarily with an honorable  discharge  on  24
June 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLS/JAJM recommend denial and stated that the applicant has  provided
no evidence of a clear  error  or  injustice  related  to  the  court-
martial.  The applicant’s recourse is to request either a pardon  from
the  President,  or  to  address  his  status  with  the   unspecified
California database, which kicked out his name as a person  prohibited
from carrying a gun in California.  According to the California  Penal
Code, brandishing a weapon is a misdemeanor.

The applicant was rightfully convicted of assault and does not contest
the conviction itself.  What he is faced with is that  apparently  the
State of California views and interprets his court-martial  conviction
as a felony.  This is not a matter under the  control  of  the  United
States.  The UCMJ does not classify convictions or crimes as  felonies
or  misdemeanors.   The  Air  Force  merely  reports  the  facts   and
circumstances surrounding the conviction.  It is up  to  the  civilian
jurisdiction to classify the conviction as they see  fit.   California
Penal Code 12021(a)(1) states that any person who has  been  convicted
of a felony under the laws of the  United  States,  of  the  State  of
California, or any other state, government, or  country,  or  who  has
been convicted of a crime from an enumerated listed, who owns  or  has
in his possession, or under his custody or control,  any  firearm,  is
guilty of a felony.  The law, in essence, prohibits  such  individuals
from being permitted to obtain or carry weapons, or face  of  criminal
liability.  For the Air Force to provide  the  applicant  relief,  the
conviction would have to be set aside.

AFLSA/JAJM complete evaluation is attached at Exhibit C.

_________________________________________________________________


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 19 September 2003, for review and comment within 30 days.
 As of this date, no response has been received by this office.

_________________________________________________________________

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 that failure to timely file.

     3.  Insufficient  relevant  evidence  has  been   presented   to
        demonstrate the existence of an error or injustice.  In  this
        regard, we note that this Board lacks the authority to change
        the reason for applicant’s court-martial  conviction.   While
        the Board is permitted to  correct  the  records  related  to
        action on sentencing, we are not persuaded that  such  action
        in this case is warranted.  As a matter of  information,  the
        applicant should pursue  the  action  suggested  by  the  Air
        Force, i.e., request either a pardon from the  President,  or
        to  address  his  status  with  the  unspecified   California
        database.   Therefore,  we  find  no  compelling   basis   to
        recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of a material error or injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2003-
02548 in Executive Session on 29 October 2003, under the provisions of
AFI 36-2603:

                 Ms. Marilyn Thomas, Vice Chair
                 Ms. Cheryl Jacobson, Member
                 Mr. Albert F. Lowas, Jr., Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 26 Jul 03, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, undated.
      Exhibit D. Letter, SAF/MRBR, dated 19 Sep 03.






      MARILYN THOMAS
      Vice Chair

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