RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-00781
		INDEX CODE:  131.09

		COUNSEL:  YES

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he retired from the Air Force Reserve in the grade of major, rather than captain.

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APPLICANT CONTENDS THAT:

The Air Force committed an error by violating its own regulation, and it committed an injustice by exaggerating the realities of the situation and ignoring the fact that it was never determined he violated any laws.

In support of his appeal, the applicant provides a counsel’s brief, documentation from the state of Pennsylvania and pertaining to an Officer Grade Determination (OGD), and supportive statements.

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

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STATEMENT OF FACTS:

Available documentation indicates that in Nov 02, the applicant took his personal computer to a computer repair shop.  While in his possession, the owner of the shop and his brother discovered what they believed to be child pornography on his computer.  The shop owner contacted the state police.  A subsequent investigation by forensic examiners confirmed the existence of the child pornography.  The applicant was subsequently charged with 20 counts of sexual abuse of children in violation of state law. 

On 19 May 03, the Commander, 910th Mission Support Group (910 MSG/CC) issued him a letter of reprimand (LOR) for the misconduct.  The LOR was placed in an unfavorable information file (UIF).  In response to the LOR, he admitted to taking his computer in for repair and to surfing adult pornography websites, but denied possessing child pornography.  He asserted that he was never given the opportunity to challenge the accusation of the wrongful possession of child pornography and argued that if he had been given the opportunity, he would have shown that the pictures were of adults.  He also asserted the alleged pictures of children found on his computer could have come from unsolicited electronic mail (e-mail) he received in the summer of 2002.  He alleged that after he opened the e‑mail, it contained pictures and materials he did not wish to have in his possession, and his attempts to delete the pictures were fruitless.

On 30 Jan 04, without entering any pleas, the applicant was entered in the Accelerated Rehabilitative Disposition (ARD) Program authorized under state law.  As a condition of the ARD program, he agreed to two years of supervised probation, sexual offender treatment, and restriction from any "sex chat rooms."  If he completed the ARD period, state law called for the dismissal of the charges and the possibility of his records being expunged.

On 10 Feb 04, the 910 MSG/CC notified the applicant of his intent to initiate an OGD prior to the effective date of his retirement.

On 26 Feb 04, he submitted his response to the proposed OGD.  The 910 MSG/CC, Commander, 910th Airlift Wing (910 AW/CC), and the Commander, 22nd Air Force (22 AF/CC) recommended he be transferred to the Retired Reserve in the grade of captain, and the proposed OGD was found to be legally sufficient.

On 6 Aug 04, the Secretary of the Air Force Personnel Council (SAF/MRBP) considered his OGD case and recommended that he be transferred to the Retired Reserve in the grade of captain.

On 9 Aug 04, the Secretary of the Air Force found the applicant did not serve satisfactorily in the grade of major (0-4) within the meaning of Section 1370a(1), Title 10, United States Code (USC).  However, the Secretary found he did serve satisfactorily in the grade of captain (0-3), within the meaning of the above provision of law and directed that he be retired in that grade.

On 14 Oct 04, Reserve Order EK-0343 was issued placing the applicant’s name on the Reserve Retired list, effective 30 Sep 04, in the grade of major.

On 19 Nov 04, Reserve Order EK-0343 was revoked due to an administrative error.  On 22 Nov 04, Reserve Order EK-1134 was issued in its place, indicating the applicant’s name was placed on the Reserve Retired list, effective 9 Aug 04, in the grade of captain).

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AIR FORCE EVALUATION:

AFRC/A1B recommends denial indicating the applicant’s retirement in the grade of captain was in compliance with the governing instruction and they found no occurrence of an error or injustice.

A complete copy of the AFRC/A1B evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel indicates the advisory opinion did nothing to refute any of the reasons to correct the applicant’s record to reflect his retirement in the grade of major.  He believes it misrepresented the applicant’s position. He never claimed the Air Force violated its regulation by exaggerating anything.  He demonstrated the Air Force committed an error by violating its own regulation and committed an injustice by exaggerating the realities of the situation and ignoring the fact that he was never determined to have violated any laws.

Counsel states the advisory opinion’s claim the applicant’s retirement as a captain was in compliance with the governing instruction was unsupported and rang hollow for failing to address the specific regulatory violations demonstrated by the applicant.

Counsel believes the advisory opinion’s comment that the applicant should not avoid accountability for his actions was a distortion of reality.  He indicates it has never been the applicant’s burden to prove his innocence and there has never been a determination of his guilt or wrongdoing for which he should be held accountable.  His participation in the ARD program was neither an admission of wrongdoing nor a finding of criminality.  

Counsel’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends denial indicating the 910 MSG/CC met the criteria to initiate an OGD.  All levels of review found the evidence in the applicant's package compelling enough to conclude he did not satisfactorily hold the grade of major.  A conviction is not required to make such a finding.  Rather, the applicant's focus on the fact his participation in the ARD program did not constitute a conviction is a "red herring."  Similarly, there was no evidence the Air Force exaggerated the realities of the situation, particularly given the serious implications of possessing child pornography--even if it were a one-time, "passive-viewing" possession.  They further noted the Secretary of the Air Force had the independent authority to retire the applicant in the highest grade he satisfactorily held, irrespective of the action taken. 

According to HQ USAF/JAA, the alleged error was neither of the type, nor the severity, mandating the Board take action to correct the applicant's retired grade from captain to major.  Retiring the applicant at a lower grade was clearly not an abuse of Secretarial discretion considering the repugnant and serious nature of the conduct.  For essentially the same reasons, they do not believe the applicant has suffered an injustice.  Further, he has failed to satisfy his burden of showing that he was the victim of an injustice.  

A complete copy of the HQ USAF/JAA evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion from HQ USAF/JAA and provides a detailed response indicating, in summary, that the advisory opinion did nothing to diminish the applicant’s demonstration that his grade reduction was both erroneous and unjust.

Counsel’s complete response, with attachment, is at Exhibit H.

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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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to override the rationale provided by HQ USAF/JAA.  No evidence has been presented which shows to our satisfaction that the information used as a basis for the Secretarial determination of the applicant’s retirement grade was erroneous, or that there was an abuse of discretionary authority.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of HQ USAF/JAA and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number BC-2007-00781 in Executive Session on 12 Feb 08, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/A1B, dated 9 Apr 07.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Apr 07.
    Exhibit E.  Letter, counsel, dated 8 May 07.
    Exhibit F.  Letter, HQ USAF/JAA, dated 30 Nov 07.
    Exhibit G.  Letter, AFBCMR, dated 19 Dec 07, w/atchs.
    Exhibit H.  Letter, counsel, dated 25 Jan 08, w/atch.

                                   
                                   Panel Chair