RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03772 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His dismissal be changed to discharge. His dismissal be upgraded to honorable. His narrative reason for separation be changed to Secretarial Authority. His separation authority be changed from AFI 36-3206 to AFI 36-3208. His Separation Program Designator be changed to JFF. His re-entry code be changed to 1J. APPLICANT CONTENDS THAT: Through counsel, the applicant offers a synopsis of his background with the Air Force, to include his time as a pilot and the many awards and decorations received during that time. He explains the circumstances of when he arrived at Incirlik Air Force Base, Turkey and how he learned of a fraternization problem with a previous flying squadron. His commander issued a verbal order that aircrew were not to have enlisted members in their rooms; however, that order was not well communicated and consistently applied. Counsel contends the applicant was not aware of that order. After a party, the applicant, along with another officer ended up in the applicant’s room. The enlisted member, upon the applicant’s invitation stayed in the room after the other officer left. According to the enlisted member, the applicant sat down next to him, dimmed the lights and placed his left hand on his shoulder, his right hand on his knee and kissed (kind of peck like) the enlisted member on the cheek. The enlisted member left. The applicant denies he was anything more than present in his room with the enlisted member. But for the commander, this incident would not have led to an investigation, let alone a court-martial. Initially, the Office of Special Investigations declined to investigate the allegations. However, the commander insisted on an investigation. The charges would eventually lead to a trial. An Article 32 investigation was held at Cannon AFB on 30 August 1993. The two remaining charges were then referred to a general courts- Martial on 13 September 1993. In parallel with these proceedings, the applicant’s superior officers were busy antagonizing him and papering his file with negative information. First, despite the fact that his officer performance report review period closed out on 1 May 1993, his performance report was submitted on 30 June 1993. He was also issued a Letter of Reprimand after discussing his case with some wives of squadron members. Given this harassment, the applicant agreed to resign, but his superior officers refused in effort to make an example out of him. He was technically convicted of indecent assault and failure to obey an order, but he was really charged and convicted of homosexuality. This can be seen right from the specification of the charges levied against him: "indecent assault upon a male airman." The fact that enlisted member was male was not an element of the crime and should have nothing to do with the severity of any sentence adjudged on that charge. This may have been due in part to the charged political environment at the time. The applicant’s conviction for indecent assault was in error and the equities warrant upgrade to his discharge. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the Air Force who served from 10 October 1986 through 24 April 1996. On 2 April 1996, pursuant to a general court-martial order, the applicant’s dismissal from the Air Force was approved and ordered. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C through E. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. The applicant was a commissioned officer who was convicted of disobeying a lawful order and for an indecent assault on an airman. The applicant's case went through the appeals process prior to his dismissal from the service. Once the case was decided by the final convening authority, the applicant's separation from the Air Force was properly initiated. Therefore, the type of separation, character of service, SPD code and narrative reason for separation are correct as indicated and in accordance with Air Force instructions. The separation authority for officers listed as AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, is correct as indicated on the applicant's DD Form 214. AFI 36-3208 is the separation authority for enlisted airmen, not officers and the applicant was an officer at the time of his court-martial and eventual dismissal. In addition, item 27 on the applicant's DD Form 214 which references the Reentry code is correct to reflect “Not Applicable” as indicated. Per AFI 36-3202, Separation Documents, there are no Reentry codes for officers who are separated from the service. Based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements and was within the discretion of the discharge authority. There is no evidence of an error or injustice with the discharge process. The complete AFPC/DPSOR evaluation is at Exhibit C. AFLOA/JAJM recommends denial of upgrading the applicant’s characterization from a dismissal to honorable. The applicant was tried by a general court-martial convened at Cannon AFB, New Mexico. A panel of members found the applicant guilty, contrary to his pleas, of one charge and one specification in violation of Article 92, UCMJ for failing to obey a lawful order and one charge and one specification in violation of Article 134, UCMJ for committing an indecent assault upon a male Airman. On 10 December 1993, the members sentenced the applicant to be discharged with a dismissal. The convening authority approved the sentence as adjudged. The record was forwarded to the Air Force Court of Criminal Appeals, who looked at the case for allegations of factual insufficiency of the evidence, improper admission of two letters of reprimand into evidence during sentencing and inappropriateness of the sentence. The court affirmed the findings and sentence in whole on 21 September 1995 in a written opinion. On 4 October 1995, his appellate defense counsel petitioned the Court of Appeals for the Armed Forces for a grant of review which was denied on 24 January 1996. Final action was taken on the applicant’s case on 2 April 1996. The punishment adjudged by a panel of members and approved by the convening authority was within the range of permissible punishments. The applicant was afforded all his appellate rights. In accordance with 10 USC 1552(f), the Board has no authority to overturn the court-marital conviction but may only on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence. The applicant argues that now that Don’t Ask Don’t Tell has been revoked and polices and social norms have changed, he should be granted clemency on his sentence. While certainly policies and norms have shifted, the applicant was still convicted of two criminal offenses. The underlying facts of those convictions are still criminal acts in the military. In addition, the severity of the sentence was specifically looked at by the appellate courts and they found that, “a higher standard of conduct may be required of officers because of their special status.” They went on to cite, United States v. Moultak, 24 M.J. 316 (C.M.A. 1987) and concluded that the sentence was appropriate. There was no error or injustice with the court- martial process. The complete AFLOA/JAJM evaluation is at Exhibit D. AFPC/JA recommends denial. The Board's authority in this matter is limited by 10 USC 1552(f). It may not overturn a court-martial conviction. But based on its clemency powers, the Board may correct actions taken by reviewing authorities. In practical terms, this means the applicant's conviction on both charges will stand, but the Board has the authority to review and change his sentence as a matter of clemency. On 10 September 2011, the Under Secretary of Defense issued guidance in concert with the repeal of "Don't Ask, Don't Tell (DADT)", 10 USC § 654. This guidance stated requests should normally be granted to change the narrative reason for a discharge, re-entry codes, characterize discharges to honorable, and/or to change the reentry code when both of the following conditions are met: The original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and there were no aggravating factors in the record, such as misconduct. The policy further states that the award of an honorable or general discharge "should normally be considered to indicate the absence of aggravating factors." The applicant was properly convicted and dismissed with many layers of independent review confirming his indecent assault of another military ember and failure to obey a lawful order. The repeal of DADT had no impact on either crime and both remain criminal offenses under UCMJ. There were no errors or injustice with the applicant’s case. The complete AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel contends the applicant was dismissed from the Air Force and his life forever changed due to homophobic hysteria. As noted by AFLOA/JAJM, the norms have shifted and the Board should reexamine the applicant’s conviction where homosexuality was not a basis for dismissal to determine whether his prior sentence remains just. The applicant’s complete response is at Exhibit G. 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We note 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, Section 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. In light of the repeal of Don’t Ask, Don’t Tell (DADT) and in accordance with the Under Secretary of Defense (Personnel and Readiness) guidance memorandum, Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, dated 20 September 2011, Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable when both of the following conditions are met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there were no aggravating factors in the record, such as misconduct. Based on our review of the evidence of record, the applicant’s discharge does not meet these requirements. For this Board to recommend granting relief, we must find there were no aggravating factors in the record. However, the applicant’s dismissal from the Air Force was the result of a court-martial conviction after being found guilty of committing an indecent act upon an airman, as well as, failing to obey a lawful order. As such, we find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant's overall quality of service, the court-martial conviction which precipitated the discharge and the seriousness of the offenses to which convicted, in addition to the applicant’s submission and find there was insufficient evidence to conclude that clemency at this time is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2014-03772 in Executive Session on 28 May 2015 under the provisions of AFI 36-2603: Although Mr. XXX chaired the panel, in view of his retirement, Ms. XXXX has signed as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Record Excerpts. Exhibit C. Letter, AFPC/DPSOR, dated 5 Nov 14. Exhibit D. Letter, AFLOA/JAJM, dated 14 Jan 15. Exhibit E. Letter, AFPC/JA, dated 17 Mar 15. Exhibit F. Letter, SAF/MRBR, dated 7 Apr 15. Exhibit G. Letter, Counsel’s Response, dated 4 May 14.