RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01986 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: The Article 15 imposed on him on 19 May 09 be set aside and his grade of master sergeant (E-7/MSgt) be reinstated with his original Date of Rank (DOR) of 1 May 08. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The Article 15 should be set aside because the imposed punishment was grossly disproportionate to the offense and will cause extreme financial hardship when he retires. When viewing his situation as a whole, including his honorable and faithful service prior to the incident under review and his life since this offense, the punishment is excessively harsh. He believes that when considering his overall outstanding record of performance and his record of achievement during his years of service, including his participation in several deployments, that the reprimand and forfeiture of pay was much more appropriate as compared to the impact of a reduction in rank. While he accepts responsibility for his actions, he does not believe his offense (storing sexually explicit photographs on unit-shared drive) constitutes “sexually explicit materials,” as established by law. In addition, the applicant cites several BCMR cases where he believes the Article 15 punishment was excessive and the Board granted relief; BC-2000-03277 and BC-2005-02266. In support of his appeal, the applicant provides a personal statement; a copy of letters of character reference, and a computer disc, with the pictures that were stored on the shared drive. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Based on the available evidence, the applicant, while serving as a master sergeant, was offered non-judicial punishment (NJP). He was charged with violating a lawful general regulation, in violation of Article 92, Uniform Code of Military Justice (UCMJ). Specifically, he was accused of wrongfully storing sexually explicit photographs on his squadron’s network drive, in violation of AFI 33-100, USER RESPONSIBILITIES AND GUIDANCE FOR INFORMATION SYSTEMS, para 3.9.1.3. His punishment consisted of reduction to the grade of technical sergeant (E-6/TSgt), forfeiture of $1,684.00 pay per month for two months (suspended for six months), and a reprimand. The applicant appealed; however, his appeal was denied. A legal review of the Article 15 action at two levels of command determined it was legally sufficient. The applicant’s new DOR was established in the grade of technical sergeant as 19 May 09. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, the applicant has not shown a clear error or injustice sufficient to warrant a set aside of the NJP action. In this case, the applicant has not met his burden in showing that his commander, the appellate authority, or the attorneys who reviewed his Article 15 acted arbitrarily or capriciously in determining that the applicant violated AFI 33-100. Importantly, in his written response to the Article 15, the applicant admitted the following: "Regardless of whether I knew those photos were sexually explicit, I understand I violated AFI 33-100 by inappropriately using a government computer and storing non-work related material and potentially inappropriate and offensive material." To now claim that his Article 15 should be set aside because he did not violate AFI 33-100 is disingenuous. The applicant's main contention is that the images found on his computer were not "sexually explicit." Because AFI 33-100 does not define "sexually explicit materials;" however, the applicant cites several federal statutes and court cases, which have attempted to do so. None of the definitions cited by the applicant binds a commander wishing to impose nonjudicial punishment for a suspected violation of AFI 33-1OO-including Title 10 United States Code (USC), Section 2495b, which the applicant cites as authority for a definition of "sexually explicit materials." As defined by Title 10 USC Section 2495b, which prohibits the sale or rental of sexually explicit materials on property under the jurisdiction of the Department of Defense (DoD)-"sexually explicit material means an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way." The applicant argues that because the images stored on his computer "did not contain any adult nudity though displaying a fully exposed breast with nipple or any nude adults with exposed genitals," the images do not meet the definition of "sexually explicit material" under 10 USC Section 2495b. Contrary to the applicant's contentions, the images found on his government computer reasonably could be considered sexually explicit materials. While these images (and dozens like them) admittedly do not depict fully exposed breasts or genitals and therefore likely would not be considered pornographic, a commander reasonably could determine that the images found on the applicant's government computer were sexually explicit and therefore a violation of AFI33-100. The applicant also fails to meet his burden in showing that the punishment imposed was unjust. While the impact of a reduction in rank from master sergeant to technical sergeant should not be minimized, the applicant's commander reasonably determined the reduction was appropriate and necessary. In the applicant's written response and again in his appeal, he detailed the financial difficulties he and his family would suffer because of the punishment. The commander and the appellate authority considered this information including a breakdown of the applicant's pre- and post-punishment finances-and determined the applicant's actions warranted a reduction in rank and suspended forfeitures. To overturn the applicant's punishment now would require the Board to substitute its judgment for that rendered by the individuals who had the opportunity to review all of the available facts including the images themselves. Such a result does not meet the intent of the nonjudicial punishment set aside provision in the UCMJ and would not be in the best interests of the Air Force. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE defers their recommendation to the recommendation of AFLOA/JAJM regarding removal of the Article 15. They note, the applicant has not alleged an error or injustice in the processing of the Article 15; he simply feels that the punishment was too harsh or unjust. Not only does the applicant’s DOR render him eligible for promotion consideration to SMSgt, cycle 10E8, but, the fact that he received a referral enlisted performance report (EPR) with a close date of 4 Sep 09 also rendered him ineligible for this cycle, in accordance with (IAW) the governing instructions and policies. The complete AFPC/DPSOE evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant’s counsel notes that the AFLOA/JAJM advisory indicates that the main contention is that the images found on his computer were not sexually explicit; however, it is clear that the applicant’s main contention is that the punishment imposed under Article 15 is grossly disproportionate to the offense. The contention that the images were not sexually explicit is a secondary argument to his main injustice argument. The JAJM advisory misplaced focus on the nature of the images detracts from the overall injustice in imposing such a grossly disproportionate punishment to such a minor offense. Further, they note, despite the applicant’s exemplary career and the relatively minor offense, the applicant’s commander nevertheless recommended a reduction in grade and that the recommendation is not “temperate, just [or] conducive to good order and discipline.” The NJP is the first and only disciplinary infraction in the applicant’s 21 years of service. Considering the relatively minor nature of the offense, it is grossly disproportionate to impose the maximum punishment allowed. They note IAW the Manual for Court Martial, Part V; commanders should consider suspending all or part of any punishment selected under Article 15. In particular, in the case of first offenders or when significant extenuating or mitigating matters are present and in this case, he should have, at least, at a minimum, suspended the reduction in grade for a period of six months. While the commander suspended a portion of the applicant’s punishment, suspension of the reduction in grade would have been more appropriate. In support of his response, the applicant’s counsel provides copies of his EPRs and awarded decorations. The applicant’s counsel complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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. We note counsel’s arguments that the focus of the JAJM evaluation appears to be misplaced by focusing the emphasis on whether the images found on the applicant’s computer were sexually explicit rather than on the severity of the punishment the applicant received. We also note counsel’s argument that this Board has found punishment administered under Article 15 to be overly harsh in other cases it has considered. However, in reviewing the cases submitted for review, we do not find the circumstances so similar to those of the applicant’s case that we are persuaded similar action is demanded in seeking consistency in the Board’s actions. We thoroughly reviewed the character references submitted in support of the applicant’s appeal. They all attest to the applicant’s exemplary service and performance; but we note none of the statements appear to be from anyone within the applicant’s chain of command during the time of his offense. While we concede the punishment imposed was harsh, we are not persuaded by the applicant’s arguments or the evidence of record that it was inappropriate to the offense and should be disturbed. The applicant did appeal the punishment, meaning the punishment imposed was reviewed by a senior level commander with the authority to change it if he found it to be excessive or improper. He did not. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: TI ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01986 in Executive Session on 26 May 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Jun 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Oct 10. Exhibit D. Letter, AFPC/DPSOE, dated 10 Nov 10. Exhibit E. Letter, SAF/MRBR, dated 26 Nov 10. Exhibit F. Letter, Counsel, dated 22 Dec 10.