RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02929
            INDEX CODE:  126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment  under  Article  15  of  the  Uniformed  Code  of
Military Justice (UCMJ) be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The events surrounding his  Article  15  are  clearly  circumstantial.   The
Security Forces Office  of  Investigation  (SFOI)  Report  of  Investigation
states that "This investigation could not  substantiate  R---  had  accessed
pornographic sites on a government computer."  That statement  should  stand
alone in its simplicity.  There was no tangible evidence to  establish  that
he committed  the  offense.   There  were  several  inconsistencies  in  the
investigations and  he  was  never  given  the  opportunity  to  refute  the
allegations, in violation of his basic right of being innocent until  proven
guilty.  A case was being built against him before he was aware that he  was
a suspect.  His commander  interviewed  every  witness  before  deciding  on
Article 15 action but never interviewed him.  Since  the  computer  was  not
password protected, it  is  clear  that  anyone  could  have  committed  the
offense, he did not.  Just because he was the last to leave on the  day  the
offense allegedly occurred is not reason to hold him liable.

Applicant also states that during the  time  period,  the  work  center  was
under renovation and contractors were constantly in and around  the  office.
Doors were discovered left unlocked overnight and  everyone  in  the  office
had their own door key.  In the SFOI report, SSgt D--- stated that  he  left
the applicant behind on the computer in question.  However,  the  only  time
he was at the computer by himself was while he was  at  the  locker  in  the
adjacent room and he was only at the computer turning it off.   On  his  way
out he  stopped  and  spoke  with  several  co-workers  before  going  home,
arriving  there  after  a  10-minute  drive  at  approximately  1615.    The
statement by TSgt G--- indicates that the alleged offense  occurred  between
1555 to 1615 hours.  During this time he was  either  speaking  with  a  co-
worker or in his  vehicle  going  home.   SSgt  D---  also  stated  that  he
attempted to open the door but it was locked and the applicant  had  to  let
him in.  The door was usually  left  open,  because  the  lock  was  broken.
Therefore, SSgt D---'s statement is inaccurate.  SSgt D---  also  stated  he
saw the applicant bring up the computer's history file  and  erase  it.   He
did add that he did not see what was on the history.  Applicant states  that
he had been told that routinely  clearing  out  the  history  would  keep  a
computer from getting bogged down.  SrA M--- stated that the  applicant  had
been accessing the sites for about 2 months after  the  section  received  a
briefing that somebody had been  accessing  illegal  sites.   That  damaging
information was later used against him.   This  should  be  a  violation  of
evidence tampering, since he had not actually  witnessed  anyone  committing
the offense.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with his Article 15 punishment, and  extracts  from
the  SFOI  Report  of  Investigation.    His   complete   submission,   with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  26  May  92.   He  has  been
progressively promoted to the grade of  technical  sergeant  having  assumed
that grade effective and with a date of rank of 1 Aug 02.

On 14 Sep 99, while serving in the grade of staff  sergeant,  the  applicant
was notified by his commander of  her  intent  to  impose  punishment  under
Article  15  of  the  UCMJ  for  a  specification  of  wrongfully   storing,
processing,  and  viewing  offensive  and  obscene  materials  while   using
government provided computer hardware or software; and, a  specification  of
dereliction in the performance of  his  duties  by  negligently  failing  to
obtain coordination and approval of his projected departure  date  prior  to
beginning his out-processing from  McChord  AFB.   He  was  advised  of  his
rights in this  matter  and  acknowledged  receipt  on  20  Sep  99.   After
consulting counsel, he elected not to  demand  trial  by  court-martial  and
submitted a  presentation  on  his  own  behalf  to  his  commander.   After
considering all the matters presented,  his  commander  determined  that  he
committed one or more of the offenses alleged and imposed punishment on  the
applicant.  His punishment consisted of a suspended reduction to  the  grade
of senior airman, forfeiture of $100 pay per month  for  2  months,  and  14
days  extra  duty.   Applicant  submitted  an  appeal  to  the  Article   15
proceedings.  On 28 Oct 99, the appellate authority denied his appeal.

The following is a resume of the  applicant's  Enlisted  Performance  Report
(EPR) profile:

      PERIOD ENDING          PROMOTION RECOMMENDATION
            14 Sep 02        4
            14 Sep 01        4
            14 Sep 00        4
            17 Feb 00        2
            17 Feb 99        5
            17 Feb 98        4

            17 Feb 97        4
            17 Feb 96        4

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AIR FORCE EVALUATION:

AFLSA/JAJM  recommends  denial.   JAJM  states  that  an  investigation  was
conducted and witnesses, including the applicant,  were  interviewed  before
the commander was provided the report for appropriate action.   Contrary  to
his assertions, he was provided ample opportunity to refute the  allegations
and made both an oral and  written  presentation  to  the  commander,  after
consulting with counsel.  His complaint is not  with  the  process,  but  in
reality with the result.  His assertion that the evidence is  circumstantial
and therefore invalid, is  not  supportable.   Evidence  may  be  direct  or
circumstantial.  Direct evidence tends directly to prove or disprove a  fact
in issue.  Circumstantial evidence is evidence  that  tends  to  prove  some
other fact from which, either alone or together with  some  other  facts  or
circumstances, the existence or nonexistence of  a  fact  in  issue  may  be
reasonably inferred.  There is no general rule for determining or  comparing
the weight to  be  given  to  direct  or  circumstantial  evidence  and  the
decision maker gives all the evidence the weight and value they  believe  it
deserves.  Although the evidence was circumstantial, it was  reasonable  for
the commander to conclude he committed the offenses alleged.  At  least  one
witness saw the applicant access pornography on the government  computer  on
a previous occasion.  The time coincides  with  the  times  he  was  in  the
office alone.  When the computer had been seized, the history and  temporary
internet files had been erased.

As is often the case, no one was caught "red-handed."  The commander had  to
weigh all the evidence, including the credibility of the various  witnesses,
and make her decision.  She ultimately resolved the issues  of  the  alleged
misconduct against the applicant.  The appeal authority considered  all  the
evidence, including his  appeal  and  determined  that  the  punishment  was
warranted.  The commander's findings are neither  arbitrary  nor  capricious
and should not be disturbed.  When evidence of  an  error  or  injustice  is
missing, it is clear that the BCMR process is not intended to simply second-
guess the  appropriateness  of  the  judgments  of  field  commanders.   The
applicant has provided no evidence of a clear error or injustice related  to
the nonjudicial punishment action.  The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20  Dec
02 for review and comment within 30 days.  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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice that would warrant set aside of his  Article
15 action.  We find no evidence of error in this case and  after  thoroughly
reviewing the documentation provided in support of his appeal,  we  are  not
persuaded that  he  has  suffered  an  injustice.   Evidence  has  not  been
presented which would lead us to believe that  the  nonjudicial  punishment,
initiated on 14 Sep 99 and imposed on 29 Sep 99 was improper.  In  cases  of
this nature, we are not inclined to  disturb  the  judgments  of  commanding
officers absent a strong showing of abuse of  discretionary  authority.   We
have no  such  showing  here.   The  evidence  indicates  that,  during  the
processing of this Article 15 action, the applicant was offered every  right
to which he was entitled.  He was represented by counsel, waived  his  right
to demand trial by court-martial, and submitted written matters  for  review
by the imposing commander and the reviewing  authority.   After  considering
the matters raised by the  applicant,  the  commander  determined  that  the
applicant had committed "one or more of the offenses  alleged"  and  imposed
punishment on the applicant.  The applicant has not  provided  any  evidence
showing that the imposing commander or the reviewing authority abused  their
discretionary authority, that his substantial rights  were  violated  during
the processing  of  the  Article  15  punishment,  or  that  the  punishment
exceeded the maximum authorized  by  the  UCMJ.   Therefore,  based  on  the
available evidence of record and in the absence of  persuasive  evidence  to
the contrary, we find  no  basis  upon  which  to  favorably  consider  this
application.

_________________________________________________________________

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  Docket  Number  BC-2002-02929
in Executive Session on 9 Apr 03, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Martha Maust, Member
      Mr. Billy C. Baxter, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 5 Dec 02.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Dec 02.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair