RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2003-00944
INDEX CODE:  126.04
	XXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXX-XX-XXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His Article 15, UCMJ, action imposed on 27 July 2001, be set aside, and all reference to it be removed from his official Air Force records.
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APPLICANT CONTENDS THAT:

His Article 15 punishment was unjust.  During the Article 15 proceedings, several of his requests were denied without due reason or went ignored.  He was improperly denied an opportunity to give a written and verbal presentation to the Article 15 imposing commander to rebut the charges.  Instead he gave his presentation to his immediate commander.  During the Article 15 proceedings, he brought up several issues of concern on his behalf, which went unanswered.  After he was found guilty, he was denied a copy of his presentation, which greatly hampered his appeal process.  The majority of the evidence used against him was taken off of his office computer.  During his assignment, at least five other individuals had access to his computer for various software upgrades and uses.  After his computer was seized, it was stored in a location where at least 15 other personnel had access.  His computer had been tampered with while in storage to remove the profiles of other individuals who accessed his computer and computer security logs had been edited to show only evidence against him.  Any evidence that would have been able to prove his innocence was edited out.  The security logs showed he was logged onto his computer at times when he has witness corroboration that he was nowhere near his computer.  

In support of his application, he provides a personal statement and a memorandum of record from a computer security manager identifying inconsistencies and probable oversights in the case against the applicant.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 20 February 1987, the applicant enlisted in the Army National Guard at the age of 18 in the grade of airman basic for a period of eight years.  He was progressively promoted to the rank of sergeant (E-5) with a date of rank of 17 January 1992.  On 19 February 1994, the applicant was released from the Army National Guard and transferred to Individual Ready Reserve.  On 28 November 1994, he enlisted in the Regular Air Force in the rank of staff sergeant (E-5) for a period of four years and entered Officer Training School (OTS).  On 16 March 1995, after attending and graduating from OTS, the applicant was honorably discharged to accept a commission.  On 17 March 1995, the applicant was tendered and accepted an appointment as a second lieutenant, Reserve of the Air Force (ResAF), and entered active duty on the same date.  He is currently serving on active duty in the grade of captain with an effective date and a date of rank of 17 March 1999.  

On 29 June 2001, his commander notified the applicant of his intent to recommend the applicant be punished under Article 15, UCMJ, for violating a lawful regulation (AFI 33-129, paragraph 6.1.3) by wrongfully storing, processing, and displaying pornography and other sexually explicit materials on a government computer, in violation of Article 92, UCMJ.  On 9 July 2001, after consulting with military defense counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation to and made a personal appearance before his commander.  The written presentation and a summary of the personal appearance were forwarded to the imposing commander.  On 27 July 2001, having considered the evidence and the applicant’s response to the Article 15, the imposing authority determined the applicant did commit the offense charged.  Punishment consisted of a reprimand and forfeiture of $600 pay for two months.  The applicant appealed the punishment and requested the action be set aside.  The applicant’s appeal was denied.  Legal reviews completed on 17 and 26 September 2001 found the record legally sufficient.  

The applicant received a referral Officer Performance Report (OPR) for the period 17 March 2001 through 30 October 2001.  On 22 January 2002, the applicant submitted a rebuttal to the referral OPR.  On 27 March 2002, the Additional Rater and Reviewer concurred with the assessment of the Rater.  

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of relief because the applicant’s contentions are without merit.  JAJM states the material involved in this case, concededly pornographic, was accessed from unauthorized sites and downloaded to the applicant’s workplace computer.  Those actions were in clear violation of a lawful general regulation, AFI 33-129, paragraph 6.1.3, that proscribes the storing, processing, displaying, sending or otherwise transmitting of offensive or obscene (including pornographic or sexually explicit) language or material through a government computer.  The applicant claims to be factually innocent; however, he waived his right to be tried for his offense by court-martial where the burden of proof would have been beyond a reasonable doubt, when he chose to accept Article 15 proceedings, placing the determination of guilt or innocence in his commander’s hands.  His commander ultimately resolved the issue of the alleged misconduct against the applicant after reviewing all the evidence before him to make the decision.  The appellate authority agreed, and provided him no relief on appeal. 

JAJM states that 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 the field commanders.  In the case of nonjudicial punishment, Congress (and the Secretary via AFI 51-202) has designated only two officials with the responsibility for determining the appropriateness of an otherwise lawful punishment:  the commander and the appeal authority.  So long as they are acting within the scope of authority granted them by law, their judgment should not be disturbed just because others might disagree.  Commanders “on the scene” have first-hand access to facts and a unique appreciation for the needs of morale and discipline in their command that even the best-intentioned higher headquarters cannot match.  A member accepting non-judicial punishment proceedings may have a hearing with the imposing commander.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  When a commander and offender are not collocated, or any other time when a personal appearance with the imposing commander is not practical, the member appears before a subordinate commander who prepares a memorandum summarizing the presentation.  The subordinate commander then forwards the memorandum to the superior commander, along with all written matters submitted by the member.  The commander must consider any information offered during that hearing and must be convinced by reliable evidence that the member committed the offense before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  The appeal authority may set aside the nonjudicial punishment action, set aside the punishment, decrease its severity, or deny the appeal.  

It is JAJM’s opinion that the commander’s determination that the applicant had committed the offense charged is certainly supported by the overwhelming circumstantial evidence in this case.  The evidence of e-mail usage, taken together with the pattern, source, and timing of unauthorized Internet access, supports the guilt of the applicant.  The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims the Air Force evaluation made several assumptions, misunderstood his statements, and disregarded additional evidence supporting his innocence and contentions that another individual committed the offenses of which he was found guilty.  The applicant’s review is at Exhibit E.

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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.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 27 July 2001, was improper.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  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, the applicant was offered every right to which he was entitled.  He consulted with counsel, and submitted written and oral matters for review by the imposing commander and was given the opportunity to present his arguments.  The imposing commander determined that the applicant did commit the offense and imposed punishment.  The applicant appealed the punishment and after considering the matters raised by the applicant in his appeal, the commander denied the request.  There is nothing in the evidence provided, other than the applicant’s assertions, which would lead us to believe that the actions by the imposing commander were inappropriate or that he did not have access to all of the appropriate information necessary on which to base his decision.  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 this Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, we defer to the opinion of legal authority regarding this issue and find no evidence of error or injustice.  Accordingly, based on the available evidence of record, we find no basis upon which to favorably consider his request that the Article 15 be removed from his records.  

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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 this application in Executive Session on 20 November 2003, under the provisions of AFI 36‑2603:

		Panel Chair
		Member
		Member

The following documentary evidence for AFBCMR Docket Number BC-2003-00944 was considered:

     Exhibit A.  DD Forms 149, dated 10 Mar 03.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 24 Apr 03.
     Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.
     Exhibit E.  Applicant’s Rebuttal, dated 4 Jun 03.

                                  
                                  Panel Chair