RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03086
		INDEX NUMBER:  111.00; 133.01
	XXXXXXXXXXXXXXX	COUNSEL:  William E. Cassara

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 16 Feb 00 through 15 Feb 01 be voided and removed from his records.

All unfavorable records in his Official Military Performance Fiche (OMPF), 201 File, Officer Records Brief, or any other official record maintained by the Department of the Air Force be removed.

He be reinstated to the grade of lieutenant colonel.

The Article 15 punishment imposed on him on 27 Jul 00 be set aside and all rights and properties of which he was deprived be restored.

He be provided any further relief, in addition to the above, but not limited to payment of any money due as a result of the correction of his military records, as deemed necessary and/or appropriate in order to provide him full and complete relief.

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APPLICANT CONTENDS THAT:

In a six-page brief of counsel, with an attached six-page report, prepared by an expert in computer technology retained by applicant and counsel, counsel provides a detailed account of the events leading to the Article 15, the contested OPR, and subsequent Officer Grade Determination (OGD).  He provides input from the report prepared by his expert advisor in computer security to support the applicant’s view as to how pornographic material ended up on his computer.  The applicant believes that someone hacked his computer from a remote site and obtained his personal information or gained access during the frequent times he was away from his desk.

In addition to the explanation offered as to how the applicant’s computer may have been hacked, counsel asserts that there is one other matter that has been ignored and should be explored.  The applicant had absolutely no reason to download pornographic material onto his work computer.  The applicant is well versed in computers and possessed one at home.  He knew that the Base computers were subject to monitoring and that his actions on government computers could be detected.  In fact, when the applicant first learned of the investigation (not knowing that he was the subject), he took no steps to “cleanse” his own computer.  Both of these facts demonstrably prove that, as far as he knew, the applicant had nothing to hide.  To further demonstrate this point, every single witness who was interviewed in this case (with the exception of the applicant’s wife) testified that he was a person of impeccable character, who would not engage in misconduct of this sort.  After interviewing a host of witnesses, the OSI could not find a character witness whose testimony would support their pre-determined outcome, so they went as far as to look up the applicant’s ex-wife, from whom he had been bitterly divorced for several years.  Her testimony did not directly support their “conclusion.”

The OSI report formed nearly the entire basis for the Article 15, contested OPR, and subsequent OGD.  Given their expert’s report containing a damning indictment of the quality of the OSI report, and given the evidence that the applicant was likely the unwitting victim of hackers, they contend that none of these actions can withstand scrutiny.  

The shortcomings on the OSI’s part can be explained partly due to the fact that the lead investigator had less than two years experience with OSI and had never done a computer related investigation.

While the applicant’s OGD action was at base level, his chain of command all recommended that he be allowed to retire as a lieutenant colonel.  When higher headquarters considered his case, the recommendations changed.  Counsel asserts that someone at higher headquarters advised the commanders at base level that they needed to change their recommendations.  This was unlawful command influence.

The evidence in this case shows that the applicant was the victim of a crime, not the perpetrator, and that higher headquarters illegally pressured the local chain of command into changing their recommendations.

Counsel’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 2 Jun 82.  He was promoted up to the grade of lieutenant colonel.  A review of the applicant’s ten OPRs prior to the contested report indicates overall ratings of “meets standards.”  On 12 Jan 00, the OSI initiated an investigation of the applicant after being provided information by the Base Information Assurance Officer that the applicant had browsed a pornographic internet site on his work computer for approximately 29 minutes.

On 11 Feb 00, the applicant filed an Inspector General (IG) complaint with the Air Force IG regarding the conduct of the investigation conducted of the allegations against him by the OSI.  The applicant’s complaint was transferred to Headquarters Air Force OSI IG for analysis and appropriate action.  AFOSI/IG determined that there had been no wrongdoing in violation of policy or law and that the issues raised by the applicant did not qualify for investigation in IG channels in accordance with AFI 90-301.  In addition, their review of the matter disclosed that agents with appropriate expertise were utilized, and the investigation otherwise appeared to be within logical parameters.

On 14 Jul 00, the applicant was notified by his Wing Commander that he was considering whether to recommend to the Numbered Air Force (NAF) Commander that he be punished under Article 15 for alleged misconduct in violation of Article 92, Uniform Code of Military Justice, in that he did on divers occasions, between on or about 9 Nov 99 and on or about 25 Jan 00, fail to obey a lawful general regulation, to wit:  paragraph 6, Air Force Instruction 33-129, Transmission of Information via the internet, dated 1 Aug 99, by wrongfully using a government computer for other than official and authorized government business and to display sexually explicit material.  After consulting counsel, the applicant waived his right to demand trial by court-martial and accepted proceedings under Article 15.  He did not request to make a personal appearance and attached a written presentation.  On 27 Jul 00, the NAF Commander determined that he had committed the alleged offense.  He imposed punishment consisting of forfeiture of $2718.00 pay per month for two months and a reprimand.  The applicant elected not to appeal the punishment.  The NAF commander also notified the applicant of his intent to file the record of the Article 15 punishment in the applicant’s Officer HQ Air Force Selection Record and of the applicant’s right to submit a statement.  The applicant elected not to submit a statement.  On 4 Aug 00, the NAF Commander determined that the record of the Article 15 punishment would be filed in the Officer HQ Air Force Selection Record and Officer Command Selection Record.

As a result of the offense that he was punished under Article 15 the applicant’s OPR for the period 16 Feb 00 through 15 Feb 01 was marked as “Does Not Meet Standards” on item 5, Judgment and Decisions, in Section V, Performance Factors.  The OPR was referred to the applicant on 16 Apr 01.  The applicant provided a written response from his attorney on 24 Apr 01.

On 22 Feb 01, the applicant declined an Active Duty Service Commitment incurred for advanced flying training (AFT).  He was required to submit an application for retirement or separation within 7 calendar days.  The applicant submitted an application requesting a retirement date of 1 Sep 01.  However, due to the requirement for a mandatory OGD, the request was delayed.  The purpose of the OGD was to see if the applicant served satisfactorily in the grade of lieutenant colonel.

The applicant’s Wing Commander initially recommended to the Numbered Air Force Commander that the applicant be retired as a lieutenant colonel.  On 2 Aug 01, the NAF Commander concurred with the recommendation and recommended to the AETC Commander that the applicant be retired in the grade of lieutenant colonel.  On 24 Oct 01, the NAF Commander submitted a new recommendation to the AETC Commander and recommended that the applicant be retired in a grade less than lieutenant colonel due to his extensive use of his government computer to access pornographic sites both as a major and lieutenant colonel.  On 26 Oct 01, the AETC Staff Judge Advocate concurred with the NAF Commander and recommended to the AETC Commander that the applicant be retired in a grade lower than lieutenant colonel.  They concluded that the applicant did not serve satisfactorily as a lieutenant colonel based on the finding that the applicant used his government computer to access pornographic sites from Dec 97 through Jan 00.  Since the applicant did not pin on lieutenant colonel until 1 Sep 98, they concluded that the applicant’s misconduct included a period while he served in the grade of major.  On 31 Oct 01, the Wing Staff Judge Advocate recommended to the Wing Commander that he forward a recommendation to the Secretary of the Air Force (SAF) or his designee through channels recommending that the applicant be retired from the Air Force in a grade lower than lieutenant colonel.

On 1 Nov 00, the Wing Commander submitted a new recommendation to the NAF Commander recommending that the applicant be retired in a grade lower than lieutenant colonel.  The NAF Staff Judge Advocate recommended to the NAF Commander that he recommend to the SAF that the applicant be retired in a grade less than lieutenant colonel.  They noted that subsequent to their initial recommendation that the applicant be retired as a lieutenant colonel, the AETC Staff Judge Advocate had identified in the OSI report that the applicant used his government computer to access pornographic sites while still serving as a major.  On 1 Nov 01, the NAF Commander recommended to the AETC Commander that the applicant be retired at a grade less than lieutenant colonel.  On 6 Nov 01, the AETC Staff Judge Advocate prepared an addendum to their legal review of 26 Oct 01 based on the additional recommendations submitted by the Wing and NAF commanders.  They continued to recommend that the applicant be retired in a grade lower than lieutenant colonel.  They noted that on 1 Nov 01, the applicant’s wing commander changed his initial recommendation that the applicant be allowed to retire as a lieutenant colonel.  They opined that it appeared that the Wing Commander changed his mind based on the duration of the applicant’s misconduct.  On   13 Nov 01, the AETC Vice Commander recommended to the Air Force Personnel Board (AFPB) that the applicant be retired in a grade lower than lieutenant colonel.  On 10 Dec 01, the AFPB found that the applicant did not serve satisfactorily as a lieutenant colonel, but did serve satisfactorily as a major.  The Board noted that the applicant’s misconduct occurred over the entire time the applicant was a lieutenant colonel.  The applicant was retired in the grade of major effective 1 Jan 02.

Additional facts relevant to this application are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C, D, and E.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to set aside the Article 15 he received.

In his handwritten statement to OSI, the applicant admitted facts that prove his guilt.  On 26 Jan 00, the applicant waived his rights to remain silent and consult with a lawyer and wrote a statement about the use of his government computer.  The applicant denied intentionally accessing child pornography sites.  However, he admitted accessing web pages, which appear to be for other than official and authorized government business.

The applicant makes several arguments in support of his contentions.  He argues that the Base server was programmed to recognize words such as “teen” and “nude,” to identify attempts to access pornographic material, and that this method of searching for child pornography is “a colossal waste of taxpayer money” as even a search for teen-aged clothing would alert the system.  This argument is flawed in many respects.  First, the method succeeded, as images of naked children were found on the applicant’s government computer.  AFI 33-129 specifically prohibits using a government computer for other than official and authorized government business as well as storing, processing, displaying, sending, or otherwise transmitting obscene language or material, including pornography.  The applicant was found to have violated AFI 33-129 by using his government computer for unauthorized purposes as well as to display sexually explicit material.

The applicant also argues that he took no steps to “cover his tracks” after he was made aware of the OSI investigation.  However, the day after the applicant made his incriminating statement to OSI, he asked his unit computer manager (UCM) to back up his hard drive on zip disks and then reformat his hard drive.  The UCM did not comply with his request.  The applicant also asked co-workers on numerous occasions whether they remember seeing him at specific times, then asking them to tell OSI.

The applicant claims he was the unwitting victim of a computer hacker, who downloaded pornographic material onto his hard drive, and used the applicant’s credit card to purchase pornographic material.  This argument ignores the financial data the OSI collected while investigating the applicant’s claims.  The applicant only reported some of the credit card transactions used to purchase pornography as fraudulent.  A close look at the applicant’s government computer showed that the time the pornographic sites were accessed, e-mails were sent from the applicant’s e-mail account, and work-related and personal documents were being accessed.  Put simply, a computer hacker would have had to been using four of the applicant’s credit cards over two years to access pornographic web sites while also sending the applicant’s e-mails and modifying his personal and professional documents without the applicant or anyone else noticing.

The applicant suggests he had no reason to download pornographic material on his work computer and, if he were at all inclined to view pornographic material, he would do it at home.  None of the witnesses interviewed knew or could think of anyone who would access the applicant’s government computer to view pornography.  The applicant failed to present any evidence to the NAF Commander to refute the allegation.  In his written response to the Article 15, the applicant never stated he did not commit the offense.  Rather, he argued the same points contained in this application.  He called the OSI investigation a “witch hunt” and the alleged offense a “violation of a minor Air Force Instruction.”

There was sufficient evidence for the commander to determine that the applicant had committed the offense.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The complete evaluation, with attachment, is at Exhibit C.

AFPC/DPPPEP recommends denial of the applicant’s request to void the referral OPR rendered on him for the period 16 Feb 00 through 15 Feb 01.

Evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15, Letters of Reprimand, etc. are taken.

The complete evaluation is at Exhibit D.

AFPC/DPPRRP recommends denial of the applicant’s request to be reinstated to the grade of lieutenant colonel.  The applicant received an Article 15 within two years of his requested retirement date.  A mandatory OGD was required.  The applicant was subsequently found not to have served satisfactorily in the grade of lieutenant colonel.  His case was properly processed in accordance with established procedures.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluations.  Counsel asserts that the advisory opinion contains both factual and procedural errors, and should be disregarded.

Counsel responds that it is “interesting and distressing” that neither the advisory opinion from AFPC/DPPEP or AFLSA/JAJM addresses one of the most critical aspects of the case, which is the incredible exertion of undue command influence on the processing of the applicant’s OGD package.  Counsel states that the applicant laid out information in great detail in the original submission, yet the legal advisor simply doesn’t address this issue.

Counsel states that the assertion that the NAF Commander was not convinced by the applicant’s defense is disingenuous.  The applicant never raised these issues, as evidence of hacking was only recently uncovered.  Counsel provides references from the report prepared by their expert on how the applicant’s computer could have been hacked into.

Counsel states that there were expenses on the applicant’s credit card statements, and that, for the most part, he did contest them.  However, such purchases do not show up as “child pornography purchased,” but, rather, as routine purchases.  Counsel asserts that if one were using his computer to make purchases on line, they would hardly note a purchase of $9.95 or so to some Internet site.  Counsel points out that according to the report prepared by their expert, hacking of this sort was quite prevalent at Air Force bases during the timeframe in question.  He states that there was a number of officers at the base where the applicant was assigned whose Officer’s Club Master Cards were fraudulently used.  Interestingly, this is the card the applicant used to make on-line purchases and he had actually reported the card as stolen.  This fact was not included in the OSI report or legal advisor’s recommendation.  Counsel asserts that the legal advisor’s statement that there was no evidence that the applicant’s computer had been infiltrated is partially true.  At the time, the applicant did not possess this evidence.  It was not his burden to prove his innocence.  If anyone, OSI should have retained a forensics expert, instead of relying, as they did, on an agent that had conducted a single investigation in the field.

Counsel also addresses the contention that the applicant waived his right to have his case considered by the AFBCMR.  The applicant chose not to contest the Article 15, choosing instead to let the evidence stand (or fall) on its own.  He was not privy to the evidence that his computer had been hacked and believed he would get a thorough and impartial review from the Wing Commander.  

Finally, counsel asserts that the statement that the findings of guilty should not be overturned unless they are arbitrary or capricious is an incorrect statement of law.  The applicant has uncovered new evidence that his computer was infiltrated.  The Board has an independent duty to determine whether they are convinced of his guilt, based on this evidence.

Counsel’s complete submission is at Exhibit G.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note counsel’s assertion that undue command influence was exerted during the processing of the applicant’s OGD package.  However, he has not provided sufficient evidence to support this claim.  In our review of the “Expert Report,” we find that it primarily hypothesizes over the possible ways the applicant’s computer could have been accessed by unauthorized hackers.  We do not dispute the accuracy of these assertions.  However, the “Expert Report” does not present any concrete evidence that unauthorized access actually occurred.  We find the OSI report of investigation more credible as it does provide specific details of actions that a hacker theory simply does not explain away.  We weighed the criticisms made by counsel and the computer technology expert regarding the fairness of the OSI investigation, but do not find sufficient evidence that the investigation was conducted in an improper manner.  We note that an Inspector General investigation failed to disclose wrongdoing in violation of policy or law regarding the investigation.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number BC-2002-03086 in Executive Session on 19 June 2003, under the provisions of AFI 36-2603:

	Ms. Olga M. Crerar, Panel Chair
	Mr. David W. Mulgrew, Member
	Mr. Vaughn E. Schlunz, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 17 Jan 03, w/atchs.
    Exhibit D.  Memorandum, AFPC/DPPPEP, dated 14 Feb 03.
    Exhibit E.  Memorandum, AFPC/DPPRRP, dated 21 Feb 03.
    Exhibit F.  Letter, SAF/MRBR, dated 28 Feb 03.
    Exhibit G.  Letter, Applicant’s Counsel, dated 27 Mar 03