Air Force Failed to Forward Gunman's Fingerprints 4 Times: IG

FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley.  (Texas Department of Public Safety via AP, File)
FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley. (Texas Department of Public Safety via AP, File)

Early on in his Air Force career, Devin P. Kelley was red-flagged: he often failed to pay attention to directions and orders, and sometimes, he disobeyed them entirely. He was in the service barely a year when the Air Force Office of Special Investigations opened an inquiry into his involvement in his own stepson's assault.

That investigation was the first opportunity the service had to submit Kelley's fingerprints to the FBI's Criminal Justice Information Services Division. But the service failed to do so. Three more opportunities to forward the airman's fingerprints along to authorities -- a move that may have prevented him from purchasing firearms -- presented themselves, but it never happened, according to a report released Friday by the Defense Department Inspector General.

On Nov. 5, 2017, Kelley, wearing black tactical gear and armed with a Ruger AR-556 semiautomatic rifle, entered First Baptist Church in Sutherland Springs, Texas, and started shooting congregants during a church service. When the shooting was over, 26 people were dead and 22 wounded. He later died from a self-inflicted gunshot wound.

Air Force Secretary Heather Wilson and Chief of Staff Gen. David Goldfein directed OSI and Security Forces officials to conduct reviews of all airmen with "reportable offenses" dating back to 2002 following the shooting. Two task forces of 30 members from each organization reviewed the action, which officials said at the time could result in a review of some 60,000 records.

The review was completed in late Dec. 2017, Air Force spokeswoman Ann Stefanek said Friday. It had "generated 21 recommendations to correct deficiencies in criminal history reporting," she said in a statement. Twenty "of the 21 recommendations have already been completed and the remaining recommendation, primarily focused on enhancing efficiency, will be completed in July," she said. Stefanek said some of the reviews searched dated back to 1998.

The DoDIG said the other services are following similar review processes.

According to multiple witnesses, including friends, former girlfriends, family, historical records and video, Kelley was prone to being abusive and violent. There were instances of sexual assault, according to the 138-page DoDIG report, multiple letters of reprimand, failure to obey lawful orders and orders from his chain of command to seek counseling.

Kelley was discharged from the Air Force in 2014 after serving four years, spending six months of his enlistment in confinement. He was discharged after he was convicted of assault -- a crime that should have forced the Air Force to submit Kelley's fingerprints to the federal government -- the fourth opportunity it had -- according to the OIG.

"Because of that conviction, the Air Force should have sent his fingerprints and final disposition report to the FBI, which should have prevented him from legally buying a gun," the DoD Inspector General said. "However, the Air Force did not submit his fingerprints or a final disposition report documenting his conviction to the FBI for inclusion in its criminal history databases, which allowed him to purchase the weapons he used in the shooting."

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"On four occasions, Kelley purchased firearms from stores that were federal firearms licensees and completed the Bureau of Alcohol, Tobacco, Firearms, and Explosives Form 4473, which is required to obtain a firearm license," the investigation said.

Striking his loved ones

Kelley graduated from basic military training in January 2010. He received orders to the 316th Training Squadron, Goodfellow Air Force Base, Texas, to attend technical school to become a network intelligence analyst, according to his service records.

Poor performance on four tests, as well as an inability to meet academic standards caused him to fail out of the training. He then was transferred to technical training at Fort Lee, Virginia, to become a traffic management specialist. Shortly thereafter, he began dating Tessa Brennaman, whom he previously knew from his hometown in New Braunfels, Texas.

According to the year-long IG investigation, Kelley abused both Brennaman and her son. Kelley hit the youngster, who later became his stepson, for the first time in March 2011. He then struck him again two months later after he had married Brennaman. Bone and chest x-rays and multiple emergency room and doctors visits were required to treat the child. On one occasion, physicians treated Brennaman's son for vomiting during the ordeal, reportedly a skull fracture.

According to court documents provided by the Pentagon last year, Kelley beat a child under the age of 16, "by striking him [with his hands] on the head and body with a force likely to produce death or grievous bodily harm."

As the family had moved to the 49th Logistics Readiness Squadron, Holloman Air Force Base, New Mexico, AFOSI Detachment 225 at Holloman opened an investigation on June 9, 2011, for assault on a child, listing Kelley as a suspect based on information provided from a social worker.

"The same day, the AFOSI conducted a subject interview of Kelley and collected his fingerprints," the DoDIG said. "Submission of Kelley's fingerprints should have occurred if the detachment received a probable cause determination from the staff judge advocate or other legal advisor that Kelley committed the crimes he was accused of, as required by DoD Instruction (DoDI) 5505.11, 'Fingerprint Card and Final Disposition Report Submission Requirements,'" investigators wrote.

"We reviewed AFOSI's investigative documentation and did not find any evidence indicating that a probable cause determination to submit Kelley's fingerprints to the FBI CJIS Division had occurred."

Two weeks later, Brennaman told an Air Force reservist that Kelley had physically assaulted her by "grabbing her around the throat, choking her, and throwing her against a wall."

Leadership at the 49th investigated but "determined no crime had been committed, and there was no evidence of any injuries to either party." Detachment 225 was notified because of the ongoing child abuse allegation investigation.

Between Sept. 7, 2011, and Feb. 22, 2012, Kelley voluntarily sought psychiatric treatment, and was treated 17 times at the Holloman Mental Health Clinic. During this time, Kelley was prescribed atomoxetine, a cognition-enhancing medication used to treat attention deficit hyperactivity disorder, as well as drugs used to treat inflammation and pain.

Brennaman, now Tessa Kelley, left her home in February, alleging Kelley had abused her again.

"Tessa Kelley got on the telephone and told the first sergeant [at the 49th Security Forces Squadron] that Kelley's actions caused her to fear for her life," the DoDIG report said.

Tessa Kelley told the 49th SFS that on Dec. 24, 2011, Kelley "pushed her against a wall and choked her because she had told him that she did not want to visit his family and stated, 'You better pack your bags or I'll choke you to the ceiling and pass you out.'" During another argument, Kelley choked her, kicked her in the stomach, and then dragged her by her hair into the bathroom.

"Kelley told her 'I'm going to water-board you' and stuck her head directly under the showerhead," the report said.

On multiple occasions over the course of their relationship, Kelley threatened to choke her if she did not do as he said, and "would slap her, kick her, pull her hair, drag her through their house, and control her."

Devin Kelley told her if "she 'said anything to anybody he would bury her in the desert somewhere,'" the report said.

The 49th Security Forces Squadron investigators attempted to interview Kelley on Feb. 17, but Kelley requested a lawyer. "At this time, the 49th Security Forces Squadron did not collect his fingerprints," the report stated.

"DoD and USAF policies required the submission of a fingerprint card (Federal Document 249 [FD-249], 'Arrest and Institution Fingerprint Card') to the FBI CJIS Division when a law enforcement official determined, after coordination with the servicing staff judge advocate or legal advisor, that probable cause existed to believe that the person committed an offense listed in DoDI 5505.11, Enclosure 2."

Officials said that "although the 49th Security Forces Squadron incident report states that the staff judge advocate was briefed on the investigation, there is no indication that there was a probable cause determination made by either the staff judge advocate or anyone in the 49th Security Forces Squadron."

It had marked the second opportunity for the service to submit Kelley's fingerprints to the FBI CJIS Division.

Gun threats, taped confession

After Tessa Kelley issued a no-contact order, Kelley voluntarily entered inpatient care at Peak Behavioral Health Services (PBHS), where he remained until March 8, 2012. He expressed mood swings and severe anxiety. Physicians noted on his report that, "the patient reported feeling suicidal with a plan to shoot himself with a gun after his wife informed him that she was filing assault charges for an altercation that occurred three weeks prior to admission."

Kelley was then prescribed Strattera for ADHD, Wellbutrin for depression, clonazepam for anxiety and Ambien for insomnia, the report said.

According to the report, staffers observed that Kelley was experience a positive recovery, and he soon left inpatient treatment. But in mid-March, as he and Tessa Kelley attempted to reconcile, Kelley pointed a loaded gun at her. "Tessa Kelley watched as Kelley put one bullet in a .38 Special revolver. Tessa Kelley stated that Kelley then pointed the gun at his own head and pulled the trigger three times. Kelley then pointed the gun at Tessa Kelley and 'threatened' her," the report stated.

The following month, during an argument in the car, Kelley would point a gun at Tessa again, asking, "Do you want to die?"

Kelley confessed in April 2012 to Tessa Kelley he had struck her son. She had convinced him to make a video recording of the confession. Kelley admitted to pushing him down multiple times, striking, slapping his stepson, as well as bruising his face. Kelley said he also shook him on at least two occasions, and admitted some of the abuse stemmed back to when they were dating in New Braunfels in March 2011.

Tessa Kelley later provided the recording of Kelley's confession to his first sergeant, who handed the recording over to AFOSI Detachment 225.

Days later, Kelley stated he was going to shoot himself and his sergeant. Health officials put him on the "high-risk notification alert list" due to his homicidal and suicidal indicators after he voluntarily sought inpatient treatment. He was at the facility over a month.

While Devin Kelley was in treatment, Tessa Kelley met with investigators. She told them Kelley had recently stated to her, "If the cops show up at my door, I will shoot them." She added that he he also told her, "My work is so lucky I do not have a shotgun because I would go in there and shoot everyone."

More opportunities to submit evidence

In June 2012, Kelley's commander started the process to begin pretrial confinement, based on witness testimony and accrued evidence. Kelley had left the PBHS facility and was considered absent without official leave by his chain of command.

The pre-trial package "included a memorandum stating that Kelley's commander was 'convinced' that Kelley was 'dangerous and likely to harm someone if released.'"

Kelley was found by El Paso police at a Greyhound bus station and he was taken into Air Force custody and entered pretrial confinement. However, the DoDIG determined that the 49th Security Forces Squadron Confinement Facility either failed to take Kelley's fingerprints, or they weren't filed.

"USAF Corrections System policy required the confinement facility personnel to fingerprint Kelley during the in‑processing into the confinement facility and to submit those records to the FBI after sentencing," the report said. The records and the fingerprints, if they were taken, were "lost," DoDIG said.

"We do know that Kelley's fingerprints were not submitted after his sentencing, as required," the report said.

"Because AFOSI Detachment 225 special agents were in possession of Kelley's confession, conducted a subject interview, and Kelley was ordered into pretrial confinement, DoD policy required the special agents to collect and submit Kelley's fingerprints to the FBI CJIS Division. ...

This was the third opportunity for the USAF to collect and submit Kelley's fingerprints to FBI CJIS Division," the report noted.

Charges

Kelley was charged with five specifications under Article 128 of the Uniform Code of Military Justice for assaulting his spouse and their child. Kelley pleaded guilty to two specifications during his general court martial at Holloman in November 2012.

Yet in his pretrial agreement -- taking a plea deal before sentencing -- three of the five specifications were dropped before Kelley's sentence was handed down.

The plea deal was orchestrated between Kelley, his attorney, and the convening authority, Lt. Gen Robin Rand, who has since retired.

The jury never saw three charges that were withdrawn and dismissed with prejudice after arraignment. They described the act of assault by unlawfully striking a child on the body with hands between April and June 2011; pointing a loaded firearm at his wife between; and pointing an unloaded firearm in April 2012, according to court documents.

Two other specifications under an additional Article 128 charge also were dismissed: The instances where Kelley pointed a loaded gun and an unloaded gun at Tessa Kelley were withdrawn.

Kelley was sentenced to 12 months' confinement at Marine Corps Air Station Miramar and reduction to an E-1 rank. Again, the Air Force should have submitted his fingerprints to federal authorities.

"According to AFOSI policy, AFOSI Detachment 225 also should have submitted the final disposition report following the court-martial on the fingerprint card or the FBI-Department of Justice Form R-84, 'Final Disposition Report,' to the FBI within 15 days of Kelley's sentencing," the report said.

The final disposition report for Kelley's criminal history was the last time the Air Force could provide the records to the FBI. "We determined that this final disposition report was not submitted to the FBI," DoDIG said.

Kelley's bad conduct discharge was executed in April 2014. He officially left the service in May.

"The calculation incorporated Kelley's sentencing date (November 7, 2012), the sentence of 12 months, and credit for his time served in pretrial confinement (5 months and 2 days)," the report said.

Gun purchases

Kelley was able to make the following gun purchases as a result of the Air Force's negligence in providing evidence to the FBI, according to DoDIG:

February 12, 2012: Kelley purchased a European American Armory Windicator .38 Special revolver from the Holloman Base Exchange. He completed the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Forms 4473, "Firearms Transaction Record." The Holloman Base Exchange completed the required [National Instant Criminal Background Check System] check on the same day. The response provided was that the Federal Firearms License could proceed with the sale.

April 12, 2012: Kelley purchased a Sig Sauer P250, a 9-millimeter, semi-automatic handgun, from the Holloman Base Exchange. Kelley completed the ATF Forms 4473. The Holloman Base Exchange completed the required NICS check on the same day. The response provided from NICS personnel was that the FFL could proceed with the sale.

December 22, 2014: Kelley purchased a Glock Model 19, a 9-millimeter, semi-automatic handgun, from Specialty Sports and Supply, in Colorado Springs, Colorado. He completed the ATF Forms 4473 and the store completed the required NICS check on the same day. The response provided was that the FFL could proceed with the sale.

June 26, 2015: Kelley purchased a Ruger GP100, a .357 Magnum, revolver handgun, again from Specialty Sports and Supply in Colorado Springs. He completed the ATF Form 4473 and the store completed the required NICS check on the same day. The response provided was that the FFL could proceed with the sale.

April 7, 2016: Kelley purchased a Ruger AR-556, a 5.56-millimeter, semi-automatic rifle, from Academy Sports and Outdoors (Store No. 41), in San Antonio, Texas. He completed the ATF Form 4473, and the store completed the required NICS check on the same day. The response provided was that the FFL could proceed with the sale.

October 18, 2017: Kelley purchased a Ruger SR22, a .22 caliber, semi-automatic handgun, from Academy Sports and Outdoors (Store No. 46), in Selma, Texas. He completed the ATF Form 4473 and the store completed the required NICS check on the same day. The response provided was that the FFL could proceed with the sale.

--- Oriana Pawlyk can be reached at oriana.pawlyk@military.com. Follow her on Twitter at @Oriana0214.

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