RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
4

IN THE MATTER OF:      DOCKET NUMBER:  99-01346
            INDEX CODES:  126.04, 131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His records be corrected to reflect that he retired in  the  grade  of
lieutenant colonel, effective 1 March 1999, with back pay.

By amendment, the nonjudicial punishment under Article 15 initiated on
18 June 1998 and imposed on 25 June 1998 be set aside and removed from
his records, and that all rights, privileges, and benefits taken  from
him because of the Article 15 be restored.

APPLICANT CONTENDS THAT:

He was promoted to the grade of lieutenant colonel in  February  1994.
As a  lieutenant  colonel,  he  was  subjected  to  an  Officer  Grade
Determination (OGD) because of a letter  of  reprimand  (LOR)  and  an
Article 15.  The Air Force Personnel Board determined that  he  should
retire as a major.  He did retire as a major on 1 March 1999.   On  29
March 1999, the Air Force Board for  Correction  of  Military  Records
(AFBCMR) declared the LOR/Unfavorable  Information  File  (UIF)  void.
Since the LOR is now void, the issue  becomes  whether  he  should  be
reduced in rank at his retirement because  of  conduct  for  which  he
received the Article 15.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement,  copies  of  the  OGD  letter,   Article   15,   supportive
statements, photographs, and other documentation associated  with  the
matter under review.

Applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 3 November 1998, the Air Force Board  for  Correction  of  Military
Records  (AFBCMR)  considered  an  application   pertaining   to   the
applicant, in which he requested that the LOR,  dated  8  April  1997,
UIF, and any and all documents and references pertaining  thereto,  be
declared void and removed from his  records.   The  Board  recommended
that the applicant’s request be granted.  The  recommendation  of  the
Board was approved by the Director, Air Force Review Boards Agency  on
29 March 1999 (Exhibit C).

At the time the events  under  review  commenced,  the  applicant  was
serving on active duty in the grade of lieutenant colonel, with a date
of rank of 9 February 1994.  Available documentation reflects that, on
18 June 1998,  the  commander  notified  the  applicant  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant, on divers occasions from about 8 April  1998  to  28  April
1998, was derelict in  the  performance  of  his  duties  in  that  he
willfully misused  his  government  computer  to  access  unauthorized
internet web sites and download  unauthorized  information,  including
pornographic material.  The applicant submitted written  comments  for
review.  On 25 June 1998, after considering the matters  presented  by
the applicant, the commander found that the  applicant  had  committed
one or more of the  offenses  alleged  and  imposed  punishment.   The
applicant received a reprimand and was ordered to forfeit $1250.00 for
two months.  He did not appeal.

On 22 Jul 98, the applicant’s commander notified  the  applicant  that
pursuant to 10 USC 1370 and AFI 36-3203, a determination would be made
to decide the grade in which he would be retired.  The basis  for  the
action was as follows:  The commander indicated that  the  applicant’s
application for voluntary retirement to be effective 1  October  1998,
or a date to be determined by the Secretary of the Air Force,  coupled
with his violation of Article 92, Dereliction of Duty, which  resulted
in an Article 15 had prompted the review  and  determination.   On  23
July 1998, the applicant  provided  a  statement  in  his  own  behalf
concerning the officer grade determination action.

On 17 August 1998, the Medical Wing  Commander  recommended  that  the
applicant be retired in the grade of major.

On 21 October 1998, the Secretary of the  Air  Force  (SAF)  Personnel
Board considered the case and indicated that, after reviewing  all  of
the facts,  the  board  determined  that  the  applicant’s  use  of  a
government computer to download pornography occurred over a relatively
short period of time and did not appear to have impacted  on  military
effectiveness.  Standing alone, and absent aggravating  factors  (such
as dissemination of the photographs), this misconduct  would  probably
not be sufficiently egregious  to  warrant  retirement  in  the  lower
grade.  The board was more concerned with the applicant’s LOR based on
events which occurred in 1995, a little over one year after he  pinned
on lieutenant colonel and two years before he was retirement eligible.
 Although strongly refuted  by  the  applicant’s  wife,  the  evidence
clearly suggested a romantic  (and  according  to  the  wife,  sexual)
relationship between the two which began on March 22, 1995,  prior  to
her divorce from her enlisted husband.  This  evidence  was  based  on
diary  entries  and  a  three-page  summary  she  drafted   on   their
relationship, as well as on the  sworn  statement  of  an  airman  who
witnessed overtly sexual aspects of their relationship.  Therefore, in
light of the unanimous command recommendation that  the  applicant  be
retired in the lower grade, the  evidence  which  indicated  that  the
applicant downloaded  pornography  using  a  government  computer  and
engaged in an affair which took place over a number of months, and the
fact that the applicant, at  the  initiation  of  the  affair,  was  a
squadron  commander  with  only  one  year  time-in-grade,  the  board
determined that the applicant should be retired  in  the  lower  grade
(Exhibit D).

On 4 November  1998,  the  Secretary  of  the  Force  found  that  the
applicant did not serve satisfactorily  in  the  grade  of  lieutenant
colonel (0-5) within the meaning of Section 1370a(1), Title 10, United
States Code.  However, the Secretary  found  that  the  applicant  did
serve satisfactorily in the grade of major (0-4), within  the  meaning
of the above provision of law and directed that he be retired in  that
grade.

On 28 February 1999, the applicant was relieved from  active  duty  in
the grade of lieutenant colonel and retired,  effective  1 March 1999,
in the grade of major.  He was credited with 22 years and 25  days  of
active duty service.

AIR FORCE EVALUATION:

The Retirement Policies and Programs  Section,  AFPC/DPPRRP,  reviewed
this application and indicated that they cannot presume  to  know  why
the Personnel Council determined that the applicant’s service  in  the
grade of lieutenant colonel was deemed unsatisfactory.  The applicable
statute provides for Secretarial determination concerning satisfactory
service and  the  Personnel  Council,  on  behalf  of  the  Secretary,
determined that the applicant had not  served  satisfactorily  in  the
grade of lieutenant colonel, and directed retirement in the  grade  of
major.  DPPRRP stated that they can only attest that the procedures to
present the OGD case file to the Council were  not  proper  since  the
report of investigation was missing.  The OGD case file  presented  to
the Personnel Council has changed, it no  longer  includes  a  UIF/LOR
from April 1997 and it includes the report of  investigation.   DPPRRP
recommends that the Board evaluate the new OGD case file  and  make  a
determination of the applicant’s retired grade in accordance  with  10
USC 1370.

A complete copy of the DPPRRP  evaluation,  with  attached  Report  of
Investigation, is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the advisory opinion, the applicant stated that  he
accidentally viewed some nude photographs while trying to learn how to
use the Internet.  He was punished by Article 15 for his mistake,  but
he should not be punished for the rest of his life.  He requests  that
the Board balance his performance and service with this minor  mistake
and retire him as a lieutenant colonel.
Applicant’s complete response is at Exhibit G.

Applicant provided a subsequent response to the SAF/PC memorandum.  He
indicated that since the LOR has  been  voided,  the  Article 15  does
“stand alone” and he believes the Air  Force  Personnel  Board  (AFPB)
would not have recommended a reduction in his retirement grade  absent
the LOR.  However, he will take this argument a step further.  But for
the mistaken belief that he had an improper relationship with his wife
(and the resulting LOR), the facts giving rise to the Article 15 would
probably not have resulted in an Article 15.  In other words,  because
of the progressive nature of  the  adverse  actions,  he  received  an
Article 15 because he already had an LOR.  If he had not received  the
now voided LOR, he probably would not have received the Article 15 for
the relatively minor incident giving rise to the Article  15.   (While
learning  how  to  use  the  Internet,  he  stumbled  upon  some  nude
photographs which really were not pornographic.   As  a  former  Judge
Advocate, squadron commander  USUHS  Assistant  Professor  who  taught
adverse actions,  he  can  state  with  some  certainty  that  with  a
faultless military record and glowing OPRs, he would not have received
an Article 15 for the internet accident but for the LOR.  As such  the
Article 15 could be properly voided rendering further consideration of
his retirement grade moot.

Applicant’s complete response is at Exhibit I.

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 probable error or injustice.

      a.  The evidence of record reflects that, after considering  all
matters presented by the applicant, his commander determined  that  he
had committed one or more  of  the  offenses  alleged,  and  made  the
decision to  impose  nonjudicial  punishment  under  Article 15.   The
applicant elected not to appeal the  punishment.   We  choose  not  to
disturb the discretionary judgments of commanding  officers,  who  are
closer to events, absent a strong showing of abuse of that  authority.
Therefore, in the absence of evidence which shows to our  satisfaction
that the applicant’s substantial rights were violated, he was  coerced
to waive  any  of  his  rights,  or  the  commander  who  imposed  the
nonjudicial punishment abused his discretionary authority, we conclude
that no basis exists to act favorably on the applicant’s request  that
the Article 15 imposed on 28 June 1998 be set aside and  removed  from
his records.

      b.  The evidence of record reflects that the Air Force Personnel
Board, under the authority delegated  by  the  Secretary  of  the  Air
Force, determined that the applicant did not serve  satisfactorily  in
the grade of lieutenant colonel, and that he should be retired in  the
grade of major.  However, the board  indicated  that  the  applicant’s
misconduct which resulted in the Article  15,  standing  alone,  would
probably not have been sufficiently egregious to warrant retirement in
the lower grade.  According to the board,  they  were  more  concerned
with the LOR the applicant received for being involved with  the  wife
of a subordinate member of the Air Force.  We  note  that  a  previous
determination by the AFBCMR resulted  in  the  LOR  being  voided  and
removed from the applicant’s records.  While we are somewhat surprised
by the decision  of  the  previous  panel  to  remove  the  LOR,  and,
notwithstanding the Personnel  Board’s  view  concerning  this  issue,
after a thorough review of the facts and circumstances of  this  case,
we believe that the  applicant’s  misconduct  which  resulted  in  the
Article 15 was sufficient to support a finding that the applicant  had
not served satisfactorily in the higher grade.  In  this  respect,  we
note that the applicant received the Article 15 for willfully misusing
his government computer to access an unauthorized  Internet  web  site
and  downloading  unauthorized  information,  including   pornographic
images.   The  applicant  claims  he  accidentally  viewed  some  nude
photographs while trying to learn how to use the  Internet.   However,
the evidence of record reveals that the applicant accessed  this  site
on approximately seven different occasions between 8 April 1998 and 28
April 1998.  In our view, the  applicant’s  behavior  was  incongruent
with the highest standards expected of an officer in the United States
Air Force.  Furthermore, we agree with the commander’s assessment that
the applicant’s use of the government computer to access and  download
pornographic material reflected poorly  on  his  ability  to  lead  by
example, and that his behavior  was  prejudicial  to  good  order  and
discipline.  In view of the foregoing, we conclude that no  compelling
basis exists to recommend favorable action on the applicant’s  request
that his records be corrected to reflect that he retired in the  grade
of lieutenant colonel.

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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  this  application  in
Executive Session on 10 May 2000, under the provisions of AFI 36-2603:

      Mr. Joseph G. Diamond, Panel Chair
      Ms. Margaret A. Zook, Member
      Mr. Clarence D. Long III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 May 1999, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum for SAF/MIB, dated 26 October 1998.
    Exhibit D.  Memorandum for Chief of Staff, dated 29 March
                1999, w/atch.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 24 June 1999.
    Exhibit F.  Letter, AFBCMR, dated 29 July 1999.
    Exhibit G.  Letter, applicant, dated 16 August 1999, w/atchs.
    Exhibit H.  Letter, AFBCMR, dated 17 April 2000.
    Exhibit I.  Letter, applicant, dated 20 April 2000.




                                   JOSEPH G. DIAMOND
                                   Panel Chair