RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04036 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The non-judicial punishment (NJP), dated 15 Jul 11, administered under Article 15 of the Uniform Code of Military Justice (UCMJ), be declared void and removed from his records. 2. He be retired in the grade of technical sergeant (E-6). ________________________________________________________________ APPLICANT CONTENDS THAT: The punishment he received under NJP is unjust. He worked in the Information Assurance (IA) career field for over nine years and was aware of dozens of classified incidents and none were resolved through NJP. Most often the individuals involved with the classified incident were either required to take some IA refresher training or no action whatsoever was taken. There was no thorough investigation completed IAW AFI 31-401, Information Security Program Management, paragraph 9.1.1. to determine a compromise of classified information occurred. He was found to be derelict in the performance of his duties by willfully failing to properly handle classified information; however, he was actually unaware there was any classified information on his computer. In support of his appeal, the applicant provides an expanded statement and copies of statements from two associates, a Defense Computer Forensic Laboratory Report, his statement to his commander concerning his Article 15, and several personal e- mails. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 10 Jan 05, the applicant, then a technical sergeant, was arraigned on multiple offenses at a court-martial, during which he was found guilty of: 1. In the United Kingdom, on divers occasions, between on or about 1 Mar 00 and on or about 1 Aug 02, he wrongfully committed indecent acts with various unknown women by photographing and videotaping various sexual acts between himself and the said various women. 2. At or near Colorado Springs, Colorado, on divers occasions, between on or about 12 Aug 02 and on or about 1 Sep 03, he wrongfully committed indecent acts with various unknown women by photographing and videotaping various sexual acts between himself and the said various women. 3. At or near Colorado Springs, Colorado, on divers occasions, between on or about 12 Aug 02 and on or about 26 Jul 04, he violated a lawful general order by wrongfully seeking and beginning off-duty employment without submitting an AF Form 3902. He was sentenced to a reduction in grade to E-5 (staff sergeant), forfeiture of $200.00 pay per month for ten months, and to perform hard labor without confinement for three months. On 12 Jul 11, while again a technical sergeant, the applicant’s commander offered him NJP under Article 15 of the UCMJ for willfully failing to properly handle classified information by storing a classified briefing marked “NATO SECRET REL ISAF” on his personal computer. On 15 Jul 11, the applicant acknowledged that he had consulted a lawyer, waived his right to a court-martial, and accepted NJP. He submitted a written presentation to his commander and requested a personal appearance. The commander determined he had, in fact, committed the alleged offense. The case was determined to be legally sufficient and the Commander imposed a punishment consisting of a reduction to the grade of staff sergeant and a reprimand. The applicant chose not to appeal. On 24 Aug 11, the Secretary of the Air Force Personnel Counsel determined that the applicant did not serve satisfactorily in any higher grade and would not be advanced on the retired list beyond the rank of staff sergeant, under the provisions of Section 8964, 10 U.S.C. On 1 Sep 11, after serving for 20 years, 11 months, and 19 days, the applicant voluntary retired for length of service. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice. The applicant argues that because he was the subject of a lengthy civilian and military criminal investigation for spearheading a prostitution and pandering ring, which subjected his personal laptop to search and seizure, and ultimately resulted in no criminal charges against him, he is being maliciously and unfairly punished for merely having a Power Point presentation with a classified slide on his personal laptop, which was the only evidence against him. He argues that this is a minor mistake and other violators of similar breaches of classified information have been dealt with far less severely. However, a review of the available documentation indicates that the applicant’s rights were observed throughout the NJP process. The commander, at the time of the Article 15, had the best opportunity to evaluate the evidence in the case. With that perspective, the commander exercised the discretion that the applicant granted him when he accepted the Article 15 and found NJP proceedings appropriate in his case. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. Moreover, the applicant was afforded the opportunity to have his commander’s decision scrutinized on appeal and elected not to do so. The legal review process showed that the commander did not act arbitrarily or capriciously in making his decision. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. The applicant has not shown a clear error or injustice. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to AFLOA/JAJM’s recommendation of denial. Should the Board grant the applicant’s request, they could direct restoration to the rank of technical sergeant with a Date of Rank of 1 Jul 08. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant submits an expanded statement reiterating each of the points made in his initial submittal. He also takes exception to many of the arguments presented in the AFLOA/JAJM advisory, pointing out what he contends are errors or inconsistencies in the advisory. Thus, he asserts he has demonstrated both error and injustice. He argues that punishment should be equitable based on the facts presented, extenuating circumstances, and previous punishments for similar offenses. He believes he provided more than sufficient evidence that his punishment was not only for the alleged offense but unjustly for other offenses that were investigated and found to be baseless (Exhibit E). ________________________________________________________________ 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 an error or injustice. We took notice of the applicant’s complete submission, including his response to the advisory opinions rendered in this case, in judging the merits of the case; however, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. We note that the commander exercised the discretion that the applicant granted him when he accepted the Article 15 and found nonjudicial punishment appropriate in his case, the punishment decision was well within the limits of the commander’s authority and discretion, and the applicant was afforded the opportunity to have his commander’s decision scrutinized on appeal and elected not to do so. Therefore, in the absence of evidence the commander abused his discretionary authority, appropriate standards were not applied, or the applicant was denied rights to which he was entitled to, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04036 in Executive Session on 3 May 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04036 was considered: Exhibit A. DD Form 149, dated 7 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 16 Dec 11. Exhibit D. Letter, AFPC/DPSOE, dated 13 Jan 12. Exhibit E. Letter, Applicant, dated 17 Feb 12 w/atch.