RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2013-03860
				COUNSEL:  NONE
	XXXXXXXX		HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

His dismissal from the Air Force by sentence of a general court-
martial be upgraded to an Under Other Than Honorable Conditions 
(UOTHC) discharge.


APPLICANT CONTENDS THAT:

In a four-page letter, the applicant provides the details and 
circumstances of the events that led to his court-martial and 
dismissal from the Air Force.  He also discusses the impact his 
dismissal has had on his ability to teach his grandsons how to 
hunt and fish as he did for his son and as his father and 
grandfather did for him.  Having a General Court-Martial (GCM) 
conviction does not allow him to own or shoot a firearm.  He had 
years of distinguished service before his momentary lapse in 
judgment.  He takes full responsibility for his mistake and never 
tried to make excuses for it.

Upgrading his discharge to UOTHC will not provide him a retirement 
or any other financial gain.  It will not change his service to 
“honorable” or negate the fact that he was court martialed.  It 
will simply allow him to legally purchase a firearm for his 
grandsons.  He is 62 years old and would like this very important 
right restored so that he can continue a family tradition and 
teach his grandsons and future grandchildren how to hunt and fish.  
Compassion and mercy are qualities good officers and leaders 
possess.  He implores the Board to extend compassion and mercy in 
his case.

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


STATEMENT OF FACTS:

On 26 February 1990, the applicant was tried and convicted at a 
GCM.  He pled guilty to and was found guilty of fraternization and 
adultery in violation of Article 134, Uniformed Code of Military 
Justice (UCMJ).  A military judge sentenced him to dismissal from 
the Air Force.

On 6 February 1991, the Secretary of the Air Force (SecAF) 
approved the sentence and ordered the dismissal be executed.

On 23 February 1991, the applicant was dismissed from the Air 
Force.  His narrative reason for separation is “Conviction by 
Court-Martial (Other than Desertion).”

According to AFI 36-3202, Separation Documents, DD Form 214, Item 
24, Character of Service, will be reflected as “Not Applicable” 
for officers dismissed by court-martial.

According to DoDI 1332.30, Separation of Regular and Reserve 
Commissioned Officers, a UOTHC discharge is given when separation 
is based upon a pattern of behavior that constitutes a significant 
departure from the conduct expected of Service members.  Or, when 
separation is based upon one or more acts or omissions that 
constitute a significant departure from the conduct expected of 
Service members. Examples of factors that may be considered 
include the use of force or violence to produce serious bodily 
injury or death; abuse of a special position of trust; disregard 
by a superior of customary superior-subordinate relationships; 
acts or omissions that endanger the security of the United States 
or the health and welfare of other Service members; and deliberate 
acts or omissions that seriously endanger the health and safety of 
other persons.

According to the Manual for Courts-Martial United States (2012 
Edition), a dismissal is a punitive separation that applies only 
to commissioned officers, commissioned warrant officers, cadets, 
and midshipmen and may be adjudged only by a general court-
martial.  Regardless of the maximum punishment specified for an 
offense in Part IV of this Manual, a dismissal may be adjudged for 
any offense of which a commissioned officer, commissioned warrant 
officer, cadet, or midshipman has been found guilty.

Pursuant to the Board's request, the Air Force Office of Special 
Investigations determined a criminal record does not exist.

On 15 May 2014, a request for post-service information was 
forwarded to the applicant for review and comment within 30 days.  
On 8 June 2014, he responded and included character references 
from people in the community who know him well.  He also included 
a letter from his ex-wife who still considers him a good and 
decent human being.  He also included copies of every Officer 
Evaluation Report he received as a commissioned officer in the Air 
Force.  Additionally, his discharge from the Army was honorable.  
Lastly, he enclosed a current résumé, which reflects a history of 
employment and assumption of increased responsibility through the 
years.  He has been a good citizen and set good examples for his 
son, daughter and grandchildren.  He does not have a criminal 
record.  His only crime was one of indiscretion.  He apologizes 
for the lapse in judgment and subsequent conduct that led to his 
dismissal.  He has watched with great interest the treatment of 
high ranking military officers for far worse offenses than he 
committed and is saddened to see that little to no actual 
punishment was taken.  He took responsibility for his actions and 
hopes the Board will act with compassion and charity in 
considering clemency in his case.

His complete response, with attachments, is at Exhibit G.


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There was no error or injustice 
with the military justice process.  On 26 February 1990, a 
military judge convicted the applicant in accordance with his 
pleas of adultery and fraternization.  The military judge 
sentenced the applicant to be dismissed from the Air Force.  On 
6 February 1991, the SecAF approved the dismissal and ordered it 
executed.

The complete JAJM evaluation is at Exhibit C.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

He agrees that there was no error in the military justice process; 
however, he believes there was an injustice.  His dismissal 
equates to having a “convicted felon” status.  He is not claiming 
innocence; he simply wants to have the “convicted felon” status 
removed.  Changing the characterization of his discharge will 
remove this status.  There are numerous instances of officers as 
well as enlisted members committing the same “crime” yet they were 
not court-martialed for it.  He violated a regulation, not a law, 
yet his rights have been violated, especially those pertaining to 
the second amendment.  This violation is a grave injustice. He 
appeals to the Board to consider his request.

The applicant’s complete response is at 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 error or injustice.  We note the applicant 
states his dismissal equates to having a “convicted felon” status 
and requests that it be changed so he can purchase firearms.  
However, this Board is without authority to reverse, set aside, or 
otherwise expunge a court-martial conviction.  Rather, in 
accordance with Title 10, United States Code, § 1552(f), our 
actions are limited to corrections to the record to reflect 
actions taken by the reviewing officials and action on the 
sentence of the court-martial for the purpose of clemency.  We 
find no evidence which indicates the applicant’s dismissal from 
the Air Force by a general court-martial conviction was improper.  
Additionally, we have a Congressional mandate which permits 
consideration of other factors; e.g., the applicant's background, 
the overall quality of service, and post-service activities and 
accomplishments.  Under our broader mandate and after careful 
consideration of all the facts and circumstances of the 
applicant's case, we are persuaded that the applicant has overcome 
the behavioral traits which led to his dismissal from the Air 
Force and has been a productive member of society.  We recognize 
the adverse impact of the type of separation he received; and, 
while it may have been appropriate at the time, we believe it 
would be an injustice for the applicant to continue to suffer its 
effects.  Therefore, we find that corrective action is appropriate 
on the basis of clemency and we recommend the applicant’s type of 
separation be changed from “Dismissal” to “Discharge” and the 
character of service be changed to UOTHC.  Given the applicant’s 
ultimate goal of purchasing firearms is outside the Board’s 
purview, it is suggested that he apply for a Presidential pardon 
under the provisions of Title 28, Code of Federal Regulations, 
§1.1, by visiting the Department of Justice website at 
http://www.justice.gov/pardon/index.html for the necessary forms 
and instructions.  Accordingly, we recommend that his records be 
corrected as set forth below.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel will 
materially add to our understanding of the issue(s) involved.  
Therefore, the request for a hearing is not favorably considered.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that his DD Form 214, 
Certificate of Release or Discharge from Active Duty, issued in 
conjunction with his 23 February 1991 dismissal, be amended in 
Item 23, Type of Separation, to reflect “Discharge” and Item 24, 
Character of Service, be amended to reflect “Under Other Than 
Honorable Conditions.”.


?
The following members of the Board considered this application in 
Executive Session on 26 June 2014 and 24 September 2014, under the 
provisions of AFI 36-2603:

 , Panel Chair
 , Member
 , Member

All members voted to correct the record as recommended.  The 
following documentary evidence pertaining to AFBCMR BC-2013-03860 
was considered: 

    Exhibit A.  DD Form 149, dated 12 August 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 20 November 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 6 December 2013.
    Exhibit E.  Letter, Applicant, dated 27 December 2013.
    Exhibit F.  Letter, AFBCMR, digitally signed 15 May 2014,
                w/atch.
    Exhibit G.  Letter, Applicant, dated 8 June 2014, w/atchs.