RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01392
            INDEX NUMBER:  126.0; 111.00

      XXXXXXXXXXXX     COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 punishment imposed on him on 31 Mar 99 be set aside.

The PRF reviewed by the Calendar Year 1999A (CY99A) lieutenant  Colonel
Selection Board be corrected to remove any reference or impact  of  the
Article 15 he received.

The Officer Performance Report (OPR) rendered on him for the period  10
May 1998 through 9 May 1999 be corrected to  remove  any  reference  or
impact of the Article 15 he received.

He be  considered  for  promotion  to  lieutenant  colonel  by  Special
Selection Board  (SSB)  for  the  CY99A  Lieutenant  Colonel  Promotion
Selection Board with a corrected record.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the alleged offense for  which  he  was  punished  by
Article 15.  He was punished for wrongfully using a government computer
for other than official  and  authorized  government  business  and  by
wrongfully  storing,  processing,  displaying,  sending,  or  otherwise
transmitting offensive or obscene material on  a  government  computer.
He states that all of his government  computer  use  was  for  official
business only and clearly authorized in AFI 33-129, paragraphs 2 and 6.

His commander awarded punishment without sufficient evidence IAW AFI 51-
202, paragraph 3.3.  The evidence presented in his case does not  prove
guilt beyond a reasonable doubt and actually supports his innocence.

His commander’s action was not temperate,  well  conceived,  just,  and
conducive to good order and discipline IAW AFI 51-202,  paragraph  3.1.
The commander stated that he based his  punishment  on  recommendations
from the base staff judge advocate (SJA) and that  the  punishment  was
commensurate with punishment awarded to other  Air  Force  members  for
similar offenses.  He discovered after talking to the base SJA that the
punishment he received would be  appropriate  for  someone  who  had  a
documented history of intentional, prolonged and repeated incidences of
accessing clearly pornographic and obscene sites for personal amusement
and personal gratification.

His commander failed to forward relevant written material presented  on
his behalf to the appellate  authority  for  consideration  during  the
appeal process in direct violation of AFI 51-202, paragraph 7.4.6.

He believes that  his  commander  handled  the  Article  15  procedures
inappropriately and not in compliance with Air Force Instructions.

The applicant’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The applicant is serving on active duty in the  grade  of  major.   His
Total Active Federal Military Service Date (TAFMSD) is     23  Jan  83.
He was considered and not selected for promotion to lieutenant  colonel
by the CY99A and CY00A Central Selection Boards.

The applicant was offered Article  15  proceedings  on  8  Mar  99  for
violating Article 92, Uniform Code  of  Military  Justice  (UCMJ),  for
wrongfully using a government computer  for  other  than  official  and
authorized government business and by wrongfully  storing,  processing,
displaying, sending, or otherwise  transmitting  offensive  or  obscene
material on a government computer.   On  9  Mar  99,  after  consulting
counsel, the applicant waived his  right  to  demand  trial  by  court-
martial and  accepted  nonjudicial  punishment.   He  made  a  personal
appearance before his commander and submitted a  written  presentation.
On 31 Mar 99, his commander determined that the applicant had committed
the alleged offense and imposed punishment consisting of forfeiture  of
$1600 pay per month for two months, suspending $400 pay  per  month  of
the forfeiture until 30 Sep  99,  and  a  reprimand.   The  applicant’s
appeal of this punishment was denied on 20 May 99.

A profile of his last 10 OPRs follows:

      Closeout Date               Overall Rating

        9 May 92             Meets Standards (MS)
        9 May 93                  MS
        9 May 94                  MS
        9 May 95                  MS
        9 May 96                  MS
        9 May 97                  MS
        9 May 98                  MS
       *9 May 99             Does Not Meet Standards
       31 Jan 00                  MS
       12 Mar 01                  MS

*  Contested Report

_______________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, Military Justice, Air Force Legal Services Agency,
AFLSA/JAJM, evaluated this application and  recommends  denial  of  the
applicant’s requests.

After reviewing the evidence and applicant’s submissions, the commander
found the applicant had committed the offense.  The punishment  imposed
on the applicant was lawful.  A commander who is considering a case for
disposition under Article  15  will  exercise  personal  discretion  in
evaluating each case, both as  to  whether  nonjudicial  punishment  is
appropriate, and if so, the  nature  and  amount  of  punishment.   The
applicant has not provided any evidence of a clear error  or  injustice
related to the nonjudicial punishment proceedings.

The applicant does not present competent evidence  that  the  appellate
authority did not consider his supervisor’s memorandum.  The  applicant
states that the memorandum was missing from the official record of  the
appeal package.  If the applicant  is  referencing  the  official  file
record for nonjudicial punishment, the  attachments  are  not  retained
with the record but are kept on file for three years at the base  legal
office of the commander who initiated the Article 15 in accordance with
AFI 51-202.  The legal office at the applicant’s assigned base has  the
applicant’s appeal memorandum in their files.

There is strong, but rebuttable, presumption that administrators of the
military discharge their duties correctly, lawfully, and in good faith.
 In the absence  of  evidence  to  the  contrary,  the  presumption  of
regularity  of  the  actions  of  official  should  prevail  over   the
unsupported  assertions  of  the  applicant.   However,  even  if   the
appellate authority did not review the memorandum, the supervisor  does
not present evidence of a clear error  or  injustice.   The  supervisor
merely states  that  after  reexamining  the  evidence,  he  could  not
conclude that the applicant intended to access an Internet site for  an
illicit purpose.   It  is  the  appellate  authority  who  reviews  the
nonjudicial  punishment  proceedings   and   evidence   considered   in
punishment.  After reviewing the  proceedings  and  the  evidence,  the
appellate authority denied the appeal.

A set aside should only be granted when the  evidence  demonstrates  an
error or a clear injustice.  The evidence presented by the applicant is
not  sufficient  to  mandate  the  relief  requested,  and   does   not
demonstrate an equitable basis for relief.

The complete evaluation is at Exhibit C.

The Chief, Program  Evaluation  Branch,  Air  Force  Personnel  Center,
AFPC/DPPPE,  also  evaluated  this  application  in  regards   to   the
applicant’s requests to correct his PRF and OPR.  They recommend denial
unless the Article 15 is set aside, in which case any references to the
Article 15 should be removed.

The complete evaluation is at Exhibit D.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant  on
17 Aug 01 for his review  and  comment  within  30  days.   To  date  a
response has not been received.

_______________________________________________________________

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.  We took  notice  of  the
applicant's complete submission in judging  the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air  Force
office of primary responsibility and adopt their rationale as the basis
for our conclusion that the applicant has not been  the  victim  of  an
error or injustice.  Therefore, in  the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the  relief
sought in this application.

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  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 9 October 2001, under the provisions  of  AFI  36-
2603:

      Ms. Peggy E. Gordon, Panel Chair
      Mr. Grover L. Dunn, Member
      Mr. Thomas J. Topolski, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 18 Jul 01.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 9 Aug 01.
    Exhibit E.  Letter, SAF/MIBR, dated 17 Aug 01.




                                   PEGGY E. GORDON
                                   Panel Chair