RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03028

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX.

	HEARING: YES

APPLICANT REQUESTS THAT:

1.  His DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; be corrected to reflect an upgrade of separation from "Dismissal" to "Discharge," his character of service be changed from "Not Applicable" to "Honorable"; the separation authority and separation code be changed from "JJD" to "JFF" or "MFF," indicating Secretarial Authority.

2.  In the alternative, should the Board determine that an Honorable Discharge is not warranted the applicant requests an upgrade of separation from "Dismissal" to "Discharged," his character of service' from "Not Applicable" to "Under Honorable Conditions (General)," the separation authority and separation code from “JJD” to “JJF” or “MFF,” indicating Secretarial Authority.

APPLICANT CONTENDS THAT:

He has created an impressive body of evidence over the past twenty years that justifies his reasonable request for clemency and a discharge upgrade.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Jul 86.  

On 3 Apr 87, the applicant received non-judicial punishment (NJP), forfeit $600 pay per month for two months, for committing larceny (shoplifting two blank cassette tapes, valued at $11.90) at the Columbus AFB Exchange.  

On 6 Apr 90, the applicant was tried by General Court-Martial at Barksdale Air Force Base for Conduct Unbecoming an Officer and Gentleman in violation of Article 133 of the UCMJ. He was found guilty of the charge and its specification (shoplifting a knife sharpener worth $11.95).  He was sentenced to confinement for four months, forfeiture of $500 pay per month for four months, a fine of $5,000, and a dismissal from service.  The sentence was adjudged (except dismissal) on 24 Jan 90.  

On 17 Apr 92, the Acting Secretary of the Air Force signed an action approving the applicant’s sentence and ordering dismissal on 5 May 92.  

On 5 May 92, the applicant was dismissed from the service for “Conviction By Court-Martial,” having served five years, ten months, and four days of active service. 

On 4 Nov 16, a request for post-service information was forwarded to the applicant via his counsel for review and comment within 30 days (Exhibit C).  On 22 Feb 17, the applicant’s counsel responded by providing the FBI background check (Exhibit D).  

On 19 Dec 16, according to documents submitted by the applicant, he was granted a full and UNCONDITIONAL PRESIDENTIAL PARDON for his 24 Jan 90 general court-martial conviction (Exhibit A).  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits E, F, and G.

AIR FORCE EVALUATION:

AFPC/DP2STM-SEP does not provide a recommendation and states that based on the documentation on file in the applicant’s master of personnel record, the discharge was processed in accordance with the general court-martial instructions.  Therefore, the SPD code, narrative reason for separation and character of service are correct as indicated. They found no evidence of an error or injustice in the discharge processing.  It has been approximately 25 years since the applicant’s dismissal from the Air Force.  The board will need to determine whether or not the applicant’s request should be approved based on clemency.  The complete advisory is at Exhibit E.

AFLOA/JAJM recommends denying the applicant’s requested relief on the basis of any legal error or injustice in his NJP or court-martial actions.  There is no evidence that the decision to proceed with NJP or the punishment decision were outside the limits of the commander’s authority and discretion.  Absent a legal error or injustice, their decision should not be disturbed.  Concurrent with applicant’s request for relief from the BCMR, applicant submitted a request to the President of the United States for a pardon of his court-martial conviction.  On 19 Dec 16, the President granted the applicant a full and unconditional pardon of his 1990 court-martial conviction.  A “presidential pardon is a sign of forgiveness.  It does not erase or expunge the record of conviction and does not indicate innocence.  Whether clemency is warranted in light of the applicant’s contribution to the medical profession and his community is a matter within the discretion of the BCMR, and recommends thorough consideration of applicant’s record and the pardon granted to the applicant by the President of the United States.  The complete advisory is at Exhibit F.

AFBCMR Psychiatric Advisor recommends denying the requested relief as a result of a mental health condition effecting the applicant’s misconduct.  The applicant claimed that he spent time after his discharge in treatment for a “psychiatric condition” that caused him to steal on the two occasions.  Yet, he provided no support from a psychiatric provider as to what type of treatment, or how long the treatment lasted.  He also did not specify whether his diagnosis was Kleptomania or some other condition. The applicant only reported that it was a condition which resulted from his relationship with his father, and it resolved with treatment.  The applicant has not provided sufficient evidence to support his position that there was a mental health condition, or that it [the mental health condition] had any effect on the applicant’s actions.  The complete advisory is at Exhibit G

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant via his counsel on 23 Aug 18 for comment (Exhibit H), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed; however, it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an injustice.  While the Board finds no error in the original discharge process, the Board recommends relief based on clemency.  After careful consideration of all the facts and circumstances of the applicant's case, to include the pardon granted by the President of the United States, the Board is persuaded the applicant’s post-service contributions to the medical profession and his community, warrant removal of the continued stigma of his “dismissal” discharge.  Therefore, the Board recommends the applicant’s records be corrected as indicated 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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 5 May 1992 he was discharged with service characterized as general (under honorable conditions), with a narrative reason for separation of “Secretarial Authority,” and a Separation Program Designator (SPD) code of “JFF.”

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03028 in Executive Session on 16 Oct 18:

, Panel Chair 
, Panel Member
, Panel Member

A majority of the panel voted to correct the record to reflect a general discharge. XXXX voted to correct the record to reflect an honorable discharge.  XXXX did not provide a minority opinion.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 27 Jul 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clemency Letter, dated 6 Nov 16.
Exhibit D:	FBI Background Check, dated 22 Feb 17.  
Exhibit E:	Advisory opinion, AFPC/DP2STM-SEP, dated 2 May 17.
Exhibit F:	Advisory opinion, AFLOA/JAJM, dated 12 May 17.
Exhibit G:	Advisory opinion, AFBCMR Psychiatric Advisor, 29 Jun 18
Exhibit H:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.