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. 1