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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