RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01562
	INDEX CODE:  110.00
	COUNSEL:  

	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His general (under honorable conditions) discharge be upgraded to honorable.

2.  His separation code of GKQ (Misconduct) be changed.

3.  The word "misconduct" be removed from block 28 of his DD Form 214.

4.  His Article 15 be removed from his record.

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APPLICANT CONTENDS THAT:

He did not challenge the determination that pornographic images were found on his Air Force computer; however, he maintains that he did not put them there, store them, or otherwise view them.  Because the Air Force denied his expert's request for access to a copy of the computer's hard drive, he was denied the ability to effectively present forensic evidence corroborating his claim of innocence.  

He was honestly mistaken when he attempted to modify an Honor Guard scheduling record to reflect that he participated as a member of an Honor Guard detail in a ceremony on the date that his Air Force computer was purportedly used to access a pornographic website.  When he reviewed the Honor Guard schedule, openly and in the presence of a government employee, he honestly believed he was correcting an entry in the attendance record.  Regardless of his actions changing the record, at no time did he present this modified attendance record as a basis to objectively corroborate his belief that he could not have accessed a pornographic website at the time the government alleged.  There is no evidence that an Air Force Office of Special Investigations (AFOSI) analysis was conducted.

In support of his application, the applicant submits counsel's statement, excerpt of AFI 51-202, letter to JA, notarized declaration and affidavit, witness statement, Article 15 notification, defense package and defense appeal package, memorandum for commander, and administrative discharge notification and response.  

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

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STATEMENT OF FACTS:

On 22 Apr 05, the applicant was relieved from active duty and discharged in the grade of second lieutenant.  He was credited with 2 years, 10 months and 15 days of active duty commissioned service.  His records indicate he was assigned duties as a developmental engineer.

The applicant's commander notified him of initiation of action under AFI 36-3206, Administrative Discharge Procedures for Commissioned Offices, for the following reasons:

a.  Between on or about 31 Dec 02 and on or about 16 Jan 03, the applicant was derelict in the performance of his duties and subsequently violated a lawful AFI by failing to safeguard his government computer log-on password as required by AFI 33-202.  For this incident, he received a Letter of Admonishment (LOA).

b.  Between on or about 12 Mar 04 and on or about 26 Mar 04, he violated AFI 33-129 by wrongfully storing pornographic images and sexually explicit video files on his government computer.  For this offense, he received Nonjudicial Punishment (Article 15).

c.  On or about 16 Aug 04, he wrongfully endeavored to impede an investigation by altering the official record of members who performed an Honor Guard detail on 26 Mar 04 by adding his name to the list of detail members.  This action was considered to be an attempt to deceive investigators of his whereabouts on 26 Mar 04.  For this offense, he received Nonjudicial Punishment.

On or about 10 Nov 04, his commander recommended that he be considered Not Qualified for Promotion (NQP) based upon the incidents and offenses listed above. 

The applicant acknowledged receipt of the notification, consulted counsel and submitted a statement on his own behalf.  On 4 Feb 05, the applicant requested that his Article 15 be set aside.  His request was denied on 10 Feb 05.  The Deputy Staff Judge Advocate reviewed the discharge case file and found it legally sufficient.  On 11 Apr 05, the Secretary of the Air Force directed the applicant be discharged with an under honorable conditions (general) discharge.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibits C and D. 

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AIR FORCE EVALUATION:

HQ AFLOA/JAJM recommends denial.  JAJM states a commander's action should only be set aside when the evidence demonstrates an error or a clear injustice.  JAJM opines the applicant has not presented evidence of this in the Article 15 process; therefore, no basis exists to expunge the Article 15 action from the applicant's records or to upgrade his discharge characterization.

The complete JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRS recommends denial.  DPPRS states that based on the documentation on file in the applicant’s master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  DPPPRS notes the applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing.  In addition, he has not provided any facts warranting removal of the Nonjudicial Punishment and "misconduct" narrative reason for separation, or changing his separation code and upgrading his character of service to honorable.  

The complete DPPRS evaluation is at Exhibit D

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 3 Aug 07 for review and comment within 30 days.  On 5 Sep 07, the applicant requested additional time in order to respond.  On 7 Sep 07, the applicant was advised that due to time constraints, we were unable to grant his request for an extension and his case was being administratively closed until such time as he was ready to proceed.

In a letter dated 2 Jan 08, the applicant's counsel requested the case be reopened and states, "that they respectfully disagree with the memorandums prepared by the Air Force offices of primary responsibility, particularly in light of the newly discovered evidence."  Counsel provides rebuttal to the conclusion and information contained in the evaluation prepared by AFLOA/JAJM.

Counsel asserts that it logically follows that if the Article 15 is set aside, then the basis for the applicant's discharge and service characterization has been unquestionably undermined.  Therefore, counsel indicates that their rebuttal is directed at "the meaningful error and clear injustice that occurred – punishing applicant under Article 15, UCMJ!"

He declares the newly discovered evidence objectively supports the applicant's belief that he did not handle illicit material on his computer at the time alleged because he was dining at a restaurant some distance away.  He alleges if this evidence had been available at the time the applicant was preparing his original defense and if applicant's expert had been given a chance to evaluate a copy of the hard drive of the computer the conflicts in timing could have been resolved, exculpating the applicant.

The remaining three-paged response reiterates much of the above-mentioned contentions and arguments.  

The applicant's counsel's complete response, with attachment, 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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 opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for the conclusion that the applicant has not been the victim of an error or injustice.  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 this application in Executive Session on 24 January 2008, under the provisions of AFI 36‑2603:

The following documentary evidence was considered for AFBCMR Docket Number BC-2007-01562:

	Exhibit A.  DD Form 149, dated 24 Apr 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 22 Jun 07.
	Exhibit D.  Letter, HQ AFPC/DPPRS, dated 17 Jul 07.
	Exhibit E.  Letter, SAF/MRBR, dated 3 Aug 07.
	Exhibit F.  Letter, AFBCMR, dated `7 Sep 07.
	Exhibit G.  Letter, Counsel, dated 2 Jan 08, w/atchs.