RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04129 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Dishonorable discharge be upgraded to General (Under Honorable Conditions). APPLICANT CONTENDS THAT: His discharge should be upgraded based on clemency. He has persevered through very difficult circumstances over the past three years and has continued to work towards being a productive member of society. His family who knows him best supports his request for clemency and provides statements on his behalf. His criminal investigation was incomplete and faulty and has led to a loss of liberty and rights. He made four requests for an attorney during his interview with the Air Force Office of Special Investigation (AFOSI) interviewer and one was not provided one in violation of his Article 31 rights. His defense team was unprepared to effectively combat his investigation and scared him into taking a deal he now regrets. The evidence against him was flawed and he presents new evidence that only reflects that there were images that could have been child pornography on his computer. Also, insufficient data was found to prove that a particular “user” downloaded, accessed or even knew that questionable files existed on the computer. The Air Force examiner was also confused on the methods of large file transfer and indicates that there is no way to determine how much contraband, if any, was on his computer. There were no preview of files done prior to or during the transfer, which indicates that the downloading user would not necessarily know the contents of the file. He knows the Board cannot address this miscarriage of justice, but ask the Board to acknowledge his character, perseverance and integrity by granting his request for clemency. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 2 Mar 10, the applicant initially entered the Regular Air Force. In accordance with General Court-Martial (GCM) Order Number 56, the applicant was tried and convicted by a general court-martial and the military judge sentenced him to a dishonorable discharge, with confinement for 24 months, forfeiture of all pay and allowances, and reduction in grade to airman basic (E-1). On 26 Jul 12, the GCM was affirmed and on 15 May 12 the sentence was adjudged by military judge. On 9 May 14, the applicant was discharged by reason of court- martial (other), with service characterized as dishonorable. He was credited with 2 years, 2 months, and 13 day of active duty service, excluding lost time from 15 May 12 thru 9 May 14 for confinement. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice with the court-martial process. JAJM notes that, on 15 May 12, the applicant pled guilty and was convicted before a judge alone at a general court-martial convened at Peterson AFB, Colorado. The applicant was convicted of one specification each of possessing and distributing one or more visual depictions of minors engaging in sexually explicit conduct, in violation of Article 134, of the Uniform Code of Military Justice (UCMJ). The applicant was sentenced to a dishonorable discharge, confinement for 25 months, to be reduced to the grade of airman basic (E-1), and forfeitures of all pay and allowances. In accordance with the pretrial agreement, the convening authority approved only 24 months confinement and the remaining sentence as adjudged. The record was forwarded to the Air Force Court of Criminal Appeals (AFCCA), which affirmed the findings in whole on 5 Nov 13. The AFCCA addressed the following issues on appeal: ineffective assistance of counsel claim; the lack of a fact- finding hearing to determine whether trial counsel failed to provide effective assistance of counsel; and the claim that the approved sentence was illegal. The AFCCA found all of the claims without merit. It appears that circa Jan 14, the Court of Appeals for the Armed Forces (CAAF) was petitioned for a grant of review; the case was affirmed and the petition denied. Final action was taken on the applicant's case on 22 Apr 14. The punishment adjudged by the military judge and approved by the convening authority appears to be within the range of permissible punishments, as the maximum punishment of 30 years confinement was agreed to by the parties at the time of trial. The applicant was afforded all his appellate rights. The applicant argues through his counsel essentially that he had ineffective assistance of counsel at his trial. His counsel contends that post-trial applicant hired an independent expert in computer forensic examination who advised that it was possible to accidentally download and possess child pornography, and that it was ineffective assistance of counsel that his original defense counsel had not hired a computer forensic examiner. Furthermore, the applicant's counsel argues that AFOSI continued to question applicant after he requested an attorney, and that a suppression motion should have been filed by applicant's trial defense counsel. The applicant also includes a number of letters written on his behalf by character references that generally state in essence the applicant is a good person, and they do not believe the applicant would commit the offense to which he pled guilty. The complete JAJM evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel refutes virtually every point made by the OPR and requests the Board disregard the opinion and reiterates the request for relief. Counsel notes multiple allegations of error identified in their petition were not evaluated by JAJM and the opinion reflects complete and total deference to the procedural history of the court-martial process and actions by appellate authorities in the case. Counsel disagrees with the contention that there were no errors or injustice in the investigation and judicial stages of the case and contends that JAJM fails to recognize these issues in conjunction with his petition for clemency. Counsel contends that JAJM has an obligation to conduct an independent review of the matters identified in their petition for relief and second, to consider the other matters submitted by the applicant independent of the court-martial process in determining whether or not clemency should be granted in the case. Based on the extreme seriousness of the case, the impact of the direct and collateral consequences of the General court- martial findings on the applicant’s civilian life (to include his registration as a sex offender), "a rubber stamp" of previous actions by at the trial level and on appeal are insufficient in this case. Counsel further reiterates his disagreement with the opinion because other matters submitted in the applicant’s defense were not addressed and the far reaching and devastating collateral impacts of this type of conviction merits clemency. The counsel’s complete response is at 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 error or injustice. We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We find no evidence that indicates the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice. We have considered the applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, the seriousness of the offense to which convicted, the letters of character reference, and the evidence submitted in support of the appeal; however, we did not a sufficient basis upon which to favorably consider this application or that clemency is warranted. 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 issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-04129 in Executive Session on 4 Jun 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Oct 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 14 Jan 15. Exhibit D. Letter, SAF/MRBR, dated 25 Jan 15. Exhibit E. Letter, Applicant’s Counsel, dated 18 Feb 15.