RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01288 COUNSEL: NONE HEARING DESIRED: NOT INDICATED _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: Other than the incident that led to his BCD, his record was impeccable and since his return to civilian life, he has not been in any trouble. In support of his appeal, the applicant provides a personal statement and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. A copy of the applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served as a Fuels Apprentice and was progressively promoted to the grade of airman first class (E-3). On 1 February 2005, the applicant was tried by a special court- martial for knowingly and wrongfully possessing 17 images of child pornography, in violation of Article 134, Uniform Code of Military Justice (UCMJ). The applicant pled not guilty to the charge. He waived his right to present his case to a panel of military members and instead elected to be tried by the military judge alone. After he was given an opportunity to confront the witness and rebut the evidence against him, he was found guilty of the offense. The military judge sentenced the applicant to a BCD, confinement for eight months, and a reduction in grade to airman basic (E-1). On 20 March 2005, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Criminal Appeals affirmed the findings and sentence on 15 May 2006. The applicant petitioned the United States Court of Appeals for the Armed Forces for review of his conviction, but was denied on 20 September 2006, making the findings and sentence in his case final and conclusive under the UCMJ. As a result, the applicant’s discharge was ordered to be executed on 18 October 2006. The applicant was discharged effective 24 October 2006 with a BCD a separation code of “JJD” (Court-Martial), and a RE code of “2M” (serving sentence or suspended court-martial sentence; or separated while serving or suspended court-martial sentence). He spent 2 years, 6 months, and 28 days on active duty with lost time from 1 February 2005 through 19 August 2005. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report (Exhibit C). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that upgrading the applicant’s BCD is not appropriate. JAJM indicates that while the applicant maintains the child pornography images were downloaded by another squadron member, he does accept the fact that he is responsible for what was on his computer. However, he states he has “more than paid the price for being naďve.” JAJM indicates that under Title 10, United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Correction of Military Record’s (AFBCMR) ability to correct records related to courts- martial, is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). JAJM states the record shows the applicant was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled not guilty to the offense and was able to have an impartial military judge decide whether the evidence showed, beyond a reasonable doubt, that the applicant had committed the offense. The judge heard testimony from numerous witnesses, including an agent from the Air Force Office of Special Investigations who testified the applicant admitted to downloading pornographic images of “preteens.” The applicant waived his right to testify or present evidence on his behalf. After evaluating the evidence, the judge found the applicant guilty of knowingly and wrongfully possessing child pornography. The applicant had the chance to present a request for clemency to the convening authority before final action on the case. Since he received a punitive discharge, his case was automatically referred to the Air Force Court of Criminal Appeals. After the Air Force Court of Criminal Appeals affirmed the finding and sentence, the applicant petitioned the United States Court of Appeals for the Armed Forces. There is no evidence of error or injustice in the process of his court-martial or appeal. It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f) (2), clemency is not warranted in this case. His sentence to a BCD, confinement for eight months, and reduction in grade to airman basic was well within the legal limits and was an appropriate punishment for the offenses committed. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy action, and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 15 June 2010, the applicant was given an opportunity to submit comments about his post service activities and the FBI Report (Exhibit F). As of this date, this office has received no response. _________________________________________________________________ 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 an error or an injustice. We are not persuaded by the evidence presented that the separation characterization received by the applicant should be changed. The applicant's discharge was based on his trial and conviction by a special court-martial. While the law precludes us from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency. However, there is nothing in the available record that would cause us to disturb the actions of the reviewing officials in this case. Therefore, the applicant’s request is not favorably considered. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01288 in Executive Session on 18 November 2010, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-01288 was considered: Exhibit A. DD Form 149, dated 17 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 19 May 10. Exhibit E. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit F. Letter, AFBCMR, dated 15 Jul 10, w/atchs. Panel Chair