RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02446

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXX
	   	
		HEARING REQUESTED: NO 	 

APPLICANT’S REQUEST

1.	His dishonorable discharge be upgraded to honorable or general (under honorable conditions).

2.	 His narrative reason for separation be changed from “Court Martial” to “Secretarial Authority.”

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends he was a shy, gay, 22 year old airman who engaged in sexual activity with his roommate and believed it was consensual.  His roommate told a different story, resulting in his general court-martial, conviction for sodomy by force without consent, imprisonment and dishonorable discharge.

In an affidavit dated 1 Oct 21, the applicant provides background on his family history, military experience and post-service activities.  He states he had an intimate physical encounter with his roommate in Nov 92.  He believed at the time it was consensual. As soon as his roommate expressed he did not want the physical contact to continue, he stopped.    

He is now a 52-year old veteran with a stellar 15 year career with a United States federal agency.  He lives a productive life, volunteers in his community and is a caregiver for his elderly mother and disabled brother.  He seeks clemency under the Wilkie Memorandum, based on his exemplary post-discharge conduct, changes in military policy and the disparate treatment he received when subjected to a criminal trial rather than an administrative discharge.  The Board should exercise its authority to remove the injustice that occurred when criminal charges were preferred, grant clemency and upgrade his discharge to accurately reflect his character of service.  

In support of his request for clemency, the applicant provides a personal statement, letters of support, copies of certificates of achievement, character statements, volunteer work, and other documents related to his request for upgrade of his discharge. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

On 22 Dec 92, the applicant was notified he was charged with committing sodomy with an airman first class (E-3) on 11 Nov 92 by force and without consent of the airman.  

On 7 Jan 93, the applicant requested discharge in lieu of trial by court-martial.  On 9 Feb 93, the Numbered Air Force Commander (NAF/CC) denied the request and noted the serious offense warranted trial by court-martial.  

Pretrial Advice of the Staff Judge Advocate (SJA) memorandum, dated 12 Jan 93, states an investigating officer (IO) found sufficient evidence to support the charge and specification of sodomy, in violation of Article 125, Uniform Code of Military Justice (UCMJ).  He allegedly performed oral sex on his sleeping roommate.  On 22 Dec 92, his commander forwarded the charge with a recommendation to refer the case to a general court-martial.  By indorsement on 7 Jan 93, the wing commander (WG/CC) recommended referral to a general court-martial.  The SJA found the alleged misconduct was sufficiently serious to warrant trial by general court-martial.  

Counsel provides the record of trial which shows a general court-martial convened 24 to 25 Feb 93.  The record of trial shows the applicant tendered a plea of not guilty.  

General Court-Martial Order, XXXX, dated 27 May 93, shows the applicant pled not guilty of the charge and specification that he on or about 11 Nov 92 committed sodomy with [redacted] by force and without his consent.  The applicant was found guilty.  The sentence adjudged on 25 Feb 93 included dishonorable discharge, confinement for six months, forfeiture of all pay and allowances and reduction to the rank of airman basic.  The sentence was affirmed in General Court Martial Order, Number 58, dated 12 Jul 95.
 
On 7 Oct 97, the applicant received a dishonorable discharge, with a narrative reason for separation of “Court Martial.”  He was credited with 5 years, 10 months and 2 days of active duty service.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit D.

POST-SERVICE INFORMATION

The applicant provided an FBI report, dated 24 Jul 21.  According to the report, the applicant was arrested on 9 Apr 95 for shoplifting.  In his personal statement he states the shoplifting charge occurred shortly after his discharge when he was desperate and vulnerable.  He was told if he completed the diversion program, it would not appear on his record.  However, when he requested his FBI file, the shoplifting charge appeared on his record. He is seeking information to see if it can be expunged.  To qualify for his current position with the federal government, he underwent multiple FBI background checks.  He currently holds a security clearance to serve in a public trust position and was recently promoted.  Other than the 1995 shoplifting charge, he has had no involvement with law enforcement.  The applicant also provided character statements, certificates, commendations, and letters of support, and evidence of community service.  

The applicant’s complete response is at Exhibit A.

In a memorandum dated 12 Aug 22, counsel provides the order issued by the State Court of [County, State] on 5 Jul 22 restricting and sealing criminal records pertaining to the applicant’s 1995 shoplifting charge.  The applicant was not tried for the shoplifting charge but completed a pre-trial diversion program and paid restitution of $150.  The applicant was told by the judge at the time that successful completion of the diversion program would result in expungement of the charge from his record; however, he learned the charge had not been removed when obtaining a copy of his FBI report.  Just as the Wilkie Memorandum recognizes, it is consistent with military custom and practice to favor second chances in which individuals have paid for their misdeeds.  The applicant committed a minor offense 27 years ago and took accountability for his transgression.  The evidence of the applicant’s exemplary post-discharge conduct is well documented in the brief, affidavits, awards and other documents provided.  It far outweighs his youthful indiscretion.  He has a 27-year record of strong character and dedication to public service.  He has been recognized repeatedly for his exemplary dedication as a federal government employee, volunteered extensively in his community and cared for his aging mother and autistic brother for many years.  He is precisely the type of veteran that the Wilkie Memorandum instructs the Board to favor with a second chance.  

The complete response is at Exhibit G.  
 
APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 22 Nov 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	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. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

AF/JA recommends denial and finds no legal basis for clemency.  The same factual challenges the applicant presents were already considered by the court-martial members. Even if there were any disagreements, it would not rise to the level of a legal error or injustice that would justify overturning the court-martial’s sentence in a sexual assault conviction.  AF/JA also finds nothing in the record to show there was prejudice to his sexual orientation.  Rather, the record is clear he performed oral sex on his roommate without his consent.  One of the issues considered was consent.  Another was whether the victim was actually not capable of consenting based on the evidence about the victim’s verbal and physical cues.  Another was why the accused admitted his crime to the victim in a secret recording.  And yet another was why the accused would think there was consensual sex after the roommate’s constant homophobia as the applicant claims.  Ultimately, the court-martial members considered all of these issues and more based on the totality of the evidence.  The punishment of dishonorable discharge was within the permissible range for the crime. AF/JA does not find that the court-martial imposed disparate or unduly harsh punishment as alleged.

AF/JA also does not find there would be a more favorable outcome today as the applicant alleges.  The applicant implies his conviction and sentence centered on his sexual orientation but the elements of the crime centered on his act of sexual assault.  The military has changed its policy regarding sexual orientation but not sexual assault.  Sexual assault would be treated the same way today, and the applicant has submitted no evidence to support his allegations otherwise. The applicant states he has maintained exemplary performance in his civilian employment; however, the requested clemency is not warranted based on the seriousness of the crime for which he was convicted.

The Wilkie Memorandum provides guidance when considering the merits of a request for discharge upgrade to ensure fundamental fairness.  Unfortunately, even when liberally applying the Wilkie Memorandum to the applicant’s case, AF/JA does not find cause for the change of the court-martial’s punishment for a sexual assault conviction.  There is no doubt that attitudes regarding sexual orientation have changed and the military policies have also changed; however, the legal review is bound by the findings of the general court-martial that were subsequently affirmed by appellate courts, unless there is evidence of an error or injustice.  The review indicates no such error or injustice; therefore, there is no basis to change the punishment imposed by the court martial.  
  
The complete advisory opinion is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 25 Mar 22 for comment (Exhibit E), and the counsel replied on 22 Apr 22.  Counsel contends the applicant’s record strongly supports discharge upgrade on the basis of clemency, which was not adequately considered in the advisory opinion.  The applicant’s request for discharge upgrade under the standards in the Wilkie Memorandum is based predominantly on his exemplary post-discharge conduct.  His strong character, reputation, professional and educational accomplishments, volunteer work and dedication for his elderly mother and disabled brother are well-documented.  Additionally, the Board is asked to consider how pervasive anti-gay prejudice likely contributed to his conviction 29 years ago and that in light of changes in perceptions since, he might receive a more favorable outcome today.  Under the standards in the Wilkie Memorandum and in light of the passage of time, fairness dictates relief should be granted.

The advisory opinion is flawed in several ways.  It disregards the Board’s congressional mandate to exercise its equitable authority to grant clemency.  The advisory opinion concluding relief is unavailable due to the seriousness of the alleged misconduct is despite the abundant documented evidence of exemplary post-service activities.  It takes an unnecessarily constricted view of the scope of the Board’s clemency authority.  The advisory opinion fails to consider the supporting documentation showing strong character and exemplary post-discharge, to include affidavits and statements from current and former supervisors, colleagues, counsel, fellow former airmen and his own sworn affidavit as well as several newsletters and awards praising his accomplishments in his federal government service.

The advisory opinion incorrectly rests on the finding there was no evidence that the court-martial proceedings were improper or that his rights were denied.  In fact, there were two factors that likely compromised the fairness: (1) the prevalence of prejudice against homosexuals at the time and (2) the motive of the accuser to out the applicant as gay in order to avoid having to room with him.  The advisory opinion fails to adequately take into account the pervasive and then legitimized bias against gay people.  Even if the Board concludes the court-martial proceedings were proper and the punishment appropriate, it is well within the Board’s authority to grant clemency and the Board should do so.  The applicant has submitted significant evidence with respect to the factors set forth in the Wilke Memorandum.  Two former airmen who served with the applicant and knew him well at the time described him as a quiet introvert, with no history of inappropriate, threatening or violent behavior.  Three former colleagues state they view the conduct for which he was convicted as entirely out of character based on their experience with him.  

The advisory opinion is also incorrect in stating that no factual determination should be made based on his post-service employment.  The Wilkie Memorandum requires such a determination to be made where an applicant requests discharge upgrade on the basis of clemency.  To decline to make such a determination regarding the character of his positive post-discharge life effectively suggests the Board abdicate its role in assessing an application for clemency.

The advisory opinion appears to reason the case had nothing to do with his sexual orientation.  The letter submitted in support of the applicant by Minority Veterans of America provides historical context which puts the advisory opinion’s finding into question.  

Counsel acknowledges the Board is not empowered to review the court-martial record or set aside the applicant’s conviction.  However, pursuant to the Board’s broad mandate, the Board can change the severity of the punishment on the basis of clemency. The applicant is not asking the Board to re-litigate his case or overturn his conviction but that the Board consider clear and credible evidence that at the time of his trial, gay men were perceived as deviant predators.  This historical fact should cast doubt on the ability of the court-martial members to render a fair and impartial decision.  

In further support of the request, counsel provides a report from the organization Minority Vets, dated 20 Apr 22.  It states at the time of his conviction in 1993, there was systemic bias against homosexuals and that it was pervasive and in both the culture at large and in the military.  The outcome of the applicant’s case was entirely on the assessment of the court-martial members who were faced with conflicting reports from two people, one who was gay and one who was not.  There were no other witnesses.  The applicant was sincere in his belief his accuser was awake and consented to the sexual activity.  The applicant’s counsel at the court-martial submitted an affidavit stating he believed prejudice against homosexuals resulted in an injustice to the applicant, both when he was charged with non-consensual sexual contact and denied an opportunity for discharge in lieu of trial.  

The applicant’s complete response is at Exhibit F.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitation period established by 10 U.S.C. § 1552(b).

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

3. After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  It appears the applicant’s court-martial and discharge were consistent with the substantive requirements of the discharge regulation and were within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offense committed.  While counsel contends the applicant’s court-martial and dishonorable discharge were due to pervasive anti-gay prejudice at the time and that a more favorable outcome would result today, the Board disagrees.  In this respect, the Board acknowledges the military has changed its policy regarding sexual orientation; however, there is no evidence the applicant’s court-martial and dishonorable discharge were the result of his sexual orientation.  While counsel contends the applicant believed there was consent; the evidence shows the applicant committed forced sodomy without consent while the victim was asleep.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, finds the applicant’s exemplary post-service insufficient to overcome his court-martial conviction and dishonorable discharge for sexual assault.  Counsel contends clemency should be granted based on the Wilkie Memorandum and the passage of time and that the applicant is precisely the type of veteran the Wilkie Memorandum instructs the Board to favor with a second chance.  However, the Wilkie Memorandum clearly states relief is generally more appropriate for nonviolent offenses rather than for violent offenses.  The Wilkie Memorandum also states the Board should consider whether a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome than the applicant received and whether the punishment, including any collateral consequences, was too harsh.  The Board concludes it would be unlikely the applicant would receive a more favorable outcome today based on current policies on sexual assault.  The applicant would also likely face greater collateral consequences in current times.  In this respect, the Board finds it doubtful a similarly situated airman discharged for a sexual assault court-martial conviction today would be able to secure federal service employment in a position of trust.  Therefore, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-02446 in Executive Session on 1 Sep 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 Jul 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 22 Nov 21.
Exhibit D: Advisory Opinion, AF/JA, dated 22 Mar 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 25 Mar 22.
Exhibit F:	Applicant’s Response, w/atchs, dated 22 Apr 22.
Exhibit G: Counsel’s Response, w/atchs, dated 12 Aug 22.

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