AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE	AFSN/SSAN

AlC

RECORD REVIEW

ADDRESS AND OR ORGANIZATION  OF COUNSEL

MEMBER SITTING	HON
'-----------------------------------------------

GEN

UOTHC

OTHER

DENY

x

x x x
x
'     -----------------------------------------------

ISSUES

AOl.13 A92.25 A93.34 A93.15

INDEX NUMBER	A67. 10

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1	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER OF NOTIF!CA TION
4		BRlEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

13 May 2004	FD-2003-00455

Case heard at Washington, D.C.

Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR.

·.---------------------------C'i-----------------------------------------------------    ·-------------.·
'

TO:

FROM:

SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
AIR FORCE DISCHARGE REVJEW BOARD 1535 COMMAND DR, EE WING, JRD FLOOR ANDREWS AFB, MD 20762-7002

        h 	

AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2003-00455	

GENERAL: The applic for upgrade of his general discharge to honorable. The applicant, his wife, and his counsel, Mr..._.appeared before the Discharge Review Boar Jf.1YJ?· In addition to
the matters attached toi is a	lication, the applicant provided statements from Cap	,  MSgt­
SSgt l•I and MSg	he attached brief contains available pertinent data on the applican
factors leading to the disc  arge.

FINDINGS: Upgrade of Discharge is denied.

BACKGROUND: The applicant received a general discharge after waiving his right to present  his case before an administrative discharge board.  The applicant's record during the  enlistment  under  review contains an Article 15 for theft of gasoline, a reprimand for being late to work, a reprimand for improperly using and failing to pay his government credit card bill, a reprimand for dishonorably failing to pay a credit card bill, and a Summary Court-Martial conviction for wrongfully using a government computer to view pornography.

Issue 1.  Applicant contends his Summary Court-Martial conviction is unjust because the court wrongfully considered evidence which should have been excluded.  Specifically, the applicant believes the court should not have received in evidence the computer on which the pornography was found.  He states that computer should have been stored by the Security Forces or the Office of Special Investigations rather than in the commander's or first sergeant's office.  The Military Rules of Evidence do not require evidence to be kept in a particular location.  Moreover, by removing the computer for use and then placing it in offices where it could be observed by responsible squadron personnel, the applicant's unit took appropriate action to safeguard the computer and ensure it would be available for trial.  Based on the foregoing, the DRB found this issue to be without merit.

Issue 2.  Applicant contends his Summary Court-Martial conviction is unjust because the court wrongfully considered evidence which should have been excluded.  Specifically, the applicant believes the court should not have considered a computer disc containing a copy of the pornographic files copied from the applicant's government computer.  The applicant claims that the disc containing the files was made shortly after he was accused of viewing pornography on his government computer.  From that date until his trial about 3 months later, the applicant claims the disc was not properly secured.  The technician who made the disc simply brought the disc with him to the applicant's trial.  The applicant's unit appropriately safeguarded this evidence by entrusting it to the technician who brought it with him to the applicant's trial.  Based on the	
foregoing, the DRB found this issue to be without merit.

Issue 3.  The applicant claims one of his supervisors, MSgt W[I  "was predisposed to blame" him for incidents "that were not my doing."  The applicant's record contains counselings, reprimands, and
Article 15s from personnel other than MSgt , .. Based on the foregoing, the DRB found this issue to be without merit.

Issue 4.  The applicant contends his military defense counsel did not have sufficient time to prepare his case. The evidence in the file and the applicant's testimony indicate that the applicant was initially offered a nonjudicial punishment  for misusing his government computer in July 2000.  The applicant's Summary Court Martial was not convened until October 2000.  The Board also noted the applicant was offered the opportunity to present this issue and any other that he believed appropriate to a discharge board.  The applicant, after discussing the decision with his counsel, elected to waive his discharge board provided he received no worse than a general discharge.  Based on the foregoing, the DRB concluded this issue was	

without merit.

Issue 5.  Applicant contends the reprimand he received on 1 Feb 89 for wrongfully using his government credit card and failing to pay an $8.97 charge should not have been considered at either his court-martial or by the convening authority during his discharge action.  The Board found the applicant's evidence on this issue to be strong and agrees the reprimand should have been excluded.  The Board, however, is unable to upgrade the respondent's discharge based on this finding.  The amount and severity of the applicant's misconduct which is well established by evidence in the file convinced the Board that even had this reprimand not been included there would have been no change in the outcome of either his trial or his discharge.  The Board determined that this error did not constitute prejudicial error, i.e., there was not substantial doubt that the discharge would have remained the same if the error had not been made.  Based on the foregoing, the DRB concluded there is no basis on which to grant relief on this issue.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and that the applicant was provided full administrative due process. In view of the foregoing findings the Board further concludes that there exists no legal or equitable basis for upgrade of discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief