I	AIR  FORCE   DISCHARGE   REVIEW  BOARD  HEARING   RECORD
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NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)

GRADE	AFSN/SSAN

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TYPE  UOTH   x	I	PERSON AL   APPEARANCE	I	RECORD    REVIEW
CtlUNSEL	NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION  OF COUNSEL YES	No
x
..	VOTE OF THE  BOARD
MEMBER  SITTING	HON	GEN	UOTHC	OTHER	DENY

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ISSUES	AOl.39	INDEX N UMBER	A67.30	EXHIBITS SUBMITTED TO THE  BOARD
A02.09	A61.00	ORDER  APPOINTING  THE BOAR D
A85.07	APPLICATION  FOR  REVI EW OF DISCHARGE	I
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LETTER OF NOTIFICATION
4		BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
I	ADDITIONAL  EXHIBITS  SUBMITTED AT TIME OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE HE

HF.ARING DATE	CASE NUMBER

17 Nov 2006	FD-2005-00405

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AJ>PLICANT'S \SSUE AND THE llOARD'S PECISltlNAL RATIQNAL:i\,RE DlSCi\ISSllQ ON THB ATTACHED AIR FORC6Di$CHAROE REVlW SOARD DEClslONALRATION.'J; ij
...	....	.
Case heard in Washington, D.C. via video teleconference from Travis AFB, California.

Advise applicant of the decision of the Board and the right to submit an application to the A FBCMR. Names and votes will be made available to the applicant at the applicant's req uest.

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.	INDORS).SMENT	DATE:   11/1712006
TO:	FROM:
SAF/MRBR	SECRETARY OF THE AIR FORCE PERSONNEL  COUNCIL
AIR FORCE  DISCHARGE REVIEW  BOARD
550 C STREET WEST,  SUITE 40	1535 COMMAND DR, EE WI NG, JRD FLOOR
RANDOLPH  AFB, TX  78150-4742	ANDREWS AFB, MD 20762- 7002

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

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2005-00405	

GENERAL:  The applicant appeals for upgrade of discharge to honorable.

The applicant appeared and testified before the Discharge Review Board (DRB) at Andrews AFB, Maryland, without counsel, via video teleconference from Travis AFB, California, on 17 Nov 2006.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS:  Upgrade of discharge is denied.

The  Board  finds that  neither  the  evidence  of record  nor  that  provided  by  the  applicant  substantiates  an inequity or impropriety that would justify a change of discharge.

ISSUE:

Issue 1. The applicant contends his discharge was inequitable because it was too harsh and did not take into account his more than twenty years of service to the Air Force.  He states that he always put the Air Force's needs above his own and that he served honorably for over twenty years.  The applicant contends that one incident of misconduct, committed at home and not on duty time, should not overshadow his accomplishments and that he deserves an honorable discharge.  The records show the applicant received a civilian conviction for downloading child pornography onto his home computer.  He was sentenced to 12 months confinement (with 6 months being suspended), lifetime probation, restitution, and fees.  Evidence from a pre-treatment assessment of the applicant done prior to his conviction indicates that the applicant admitted to masturbating while thinking about having sex with a child after viewing images of child pornography.  However, the applicant vehemently denied such actions during his personal appearance.
When questioned why the counselor included such a statement in the assessment if the applicant had not made such a statement, the applicant continued to deny making such a statement.  The DRB found the applicant's denial on this point not to be credible.  The DRB found that the applicant had not served honorably for 20 years as the records show that he was downloading child pornography while on active duty for approximately  18 months well prior to completing 20 years of service.  The Board concluded the misconduct was a significant departure from conduct expected of all military members.  The characterization of the discharge received by the applicant was found to be appropriate.

Issue 2.  The applicant states that his discharge did not take into account the good things he did while in the service.  The DRB took note of the applicant's duty performance as documented by his performance reports, letters ofrecommendation  and other accomplishments.   However, they found the seriousness of the applicant's misconduct offset any positive aspects of his duty performance.   The Board concluded the discharge was appropriately characterized given the serious nature of the applicant's misconduct.

Issue 3.  The applicant raises a potential impropriety by stating that his area defense counsel did not adequately advise him of his rights during the discharge process.  The applicant contends that his defense counsel did not inform him that he had the right to a discharge board or to submit statements on his own behalf for consideration by the separation authority.  He states that when he signed the memorandum unconditionally waiving his right to a discharge board or to submit statements, that he was not given adequate time to review the document as he was working at his prison work release job and was not given the time to consult with his defense counsel.  The applicant claims that he was completely unaware that he had the right to present his case to a discharge board.  The DRB found the applicant's claim not to be credible.  The ORB noted that at the time of his discharge board waiver, the applicant was a master sergeant	

with over 20 years in the Air Force.  The ORB simply did not believe that the applicant would not have been aware of his rights, that his defense counsel would not have explained his rights to him, or that he would  have signed the board waiver document without reviewing it first.

Issue 4.  The applicant raises a potential impropriety by stating that his assigned defense counsel wrongly led him to believe that he had a "99.9 percent" chance of having his retirement application accepted by the Secretary of the Air Force's designee in lieu of administrative discharge.  On 25 April 2002, the applicant submitted his application for retirement in lieu of administrative discharge.  This application was denied on 23 July 2002 by SAF/MRB.  The ORB again found this assertion by the applicant not to be credible.  The ORB simply did not believe that the applicant's defense counsel would have made such a definitive
statement regarding the applicant's chances that his retirement application would have been accepted.  Even had the applicant's defense counsel gone out on such a limb, neither this statement nor the applicant's reliance on such a statement would have changed the outcome of this case.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and 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