RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02929
		INDEX CODE:  126.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The events surrounding his Article 15 are clearly circumstantial.  The Security Forces Office of Investigation (SFOI) Report of Investigation states that "This investigation could not substantiate XXXXX had accessed pornographic sites on a government computer."  That statement should stand alone in its simplicity.  There was no tangible evidence to establish that he committed the offense.  There were several inconsistencies in the investigations and he was never given the opportunity to refute the allegations, in violation of his basic right of being innocent until proven guilty.  A case was being built against him before he was aware that he was a suspect.  His commander interviewed every witness before deciding on Article 15 action but never interviewed him.  Since the computer was not password protected, it is clear that anyone could have committed the offense, he did not.  Just because he was the last to leave on the day the offense allegedly occurred is not reason to hold him liable.  

Applicant also states that during the time period, the work center was under renovation and contractors were constantly in and around the office.  Doors were discovered left unlocked overnight and everyone in the office had their own door key.  In the SFOI report, SSgt XXXXX stated that he left the applicant behind on the computer in question.  However, the only time he was at the computer by himself was while he was at the locker in the adjacent room and he was only at the computer turning it off.  On his way out he stopped and spoke with several co-workers before going home, arriving there after a 10-minute drive at approximately 1615.  The statement by TSgt XXXXX indicates that the alleged offense occurred between 1555 to 1615 hours.  During this time he was either speaking with a co-worker or in his vehicle going home.  SSgt XXXXX also stated that he attempted to open the door but it was locked and the applicant had to let him in.  The door was usually left open, because the lock was broken.  Therefore, SSgt XXXXX statement is inaccurate.  SSgt XXXXX also stated he saw the applicant bring up the computer's history file and erase it.  He did add that he did not see what was on the history.  Applicant states that he had been told that routinely clearing out the history would keep a computer from getting bogged down.  SrA XXXXX stated that the applicant had been accessing the sites for about 2 months after the section received a briefing that somebody had been accessing illegal sites.  That damaging information was later used against him.  This should be a violation of evidence tampering, since he had not actually witnessed anyone committing the offense.  

In support of his request, applicant provided a personal statement, documentation associated with his Article 15 punishment, and extracts from the SFOI Report of Investigation.  His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 26 May 92.  He has been progressively promoted to the grade of technical sergeant having assumed that grade effective and with a date of rank of 1 Aug 02.

On 14 Sep 99, while serving in the grade of staff sergeant, the applicant was notified by his commander of her intent to impose punishment under Article 15 of the UCMJ for a specification of wrongfully storing, processing, and viewing offensive and obscene materials while using government provided computer hardware or software; and, a specification of dereliction in the performance of his duties by negligently failing to obtain coordination and approval of his projected departure date prior to beginning his out-processing from McChord AFB.  He was advised of his rights in this matter and acknowledged receipt on 20 Sep 99.  After consulting counsel, he elected not to demand trial by court-martial and submitted a presentation on his own behalf to his commander.  After considering all the matters presented, his commander determined that he committed one or more of the offenses alleged and imposed punishment on the applicant.  His punishment consisted of a suspended reduction to the grade of senior airman, forfeiture of $100 pay per month for 2 months, and 14 days extra duty.  Applicant submitted an appeal to the Article 15 proceedings.  On 28 Oct 99, the appellate authority denied his appeal. 

The following is a resume of the applicant's Enlisted Performance Report (EPR) profile:

	PERIOD ENDING		PROMOTION RECOMMENDATION
		14 Sep 02		4
		14 Sep 01		4
		14 Sep 00		4
		17 Feb 00		2
		17 Feb 99		5
		17 Feb 98		4

		17 Feb 97		4
		17 Feb 96		4

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that an investigation was conducted and witnesses, including the applicant, were interviewed before the commander was provided the report for appropriate action.  Contrary to his assertions, he was provided ample opportunity to refute the allegations and made both an oral and written presentation to the commander, after consulting with counsel.  His complaint is not with the process, but in reality with the result.  His assertion that the evidence is circumstantial and therefore invalid, is not supportable.  Evidence may be direct or circumstantial.  Direct evidence tends directly to prove or disprove a fact in issue.  Circumstantial evidence is evidence that tends to prove some other fact from which, either alone or together with some other facts or circumstances, the existence or nonexistence of a fact in issue may be reasonably inferred.  There is no general rule for determining or comparing the weight to be given to direct or circumstantial evidence and the decision maker gives all the evidence the weight and value they believe it deserves.  Although the evidence was circumstantial, it was reasonable for the commander to conclude he committed the offenses alleged.  At least one witness saw the applicant access pornography on the government computer on a previous occasion.  The time coincides with the times he was in the office alone.  When the computer had been seized, the history and temporary internet files had been erased.  

As is often the case, no one was caught "red-handed."  The commander had to weigh all the evidence, including the credibility of the various witnesses, and make her decision.  She ultimately resolved the issues of the alleged misconduct against the applicant.  The appeal authority considered all the evidence, including his appeal and determined that the punishment was warranted.  The commander's findings are neither arbitrary nor capricious and should not be disturbed.  When evidence of an error or injustice is missing, it is clear that the BCMR process is not intended to simply second-guess the appropriateness of the judgments of field commanders.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 Dec 02 for review and comment within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice that would warrant set aside of his Article 15 action.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we are not persuaded that he has suffered an injustice.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, initiated on 14 Sep 99 and imposed on 29 Sep 99 was improper.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that, during the processing of this Article 15 action, the applicant was offered every right to which he was entitled.  He was represented by counsel, waived his right to demand trial by court-martial, and submitted written matters for review by the imposing commander and the reviewing authority.  After considering the matters raised by the applicant, the commander determined that the applicant had committed "one or more of the offenses alleged" and imposed punishment on the applicant.  The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, based on the available evidence of record and in the absence of persuasive evidence to the contrary, we find no basis upon which to favorably consider this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2002-02929 in Executive Session on 9 Apr 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 5 Dec 02.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.