RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03086
            INDEX NUMBER:  111.00; 133.01
      XXXXXXXXXXXXXXXXXXXX   COUNSEL:  William E. Cassara

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period 16
Feb 00 through 15 Feb 01 be voided and removed from his records.

All unfavorable records in his  Official  Military  Performance  Fiche
(OMPF), 201 File, Officer Records Brief, or any other official  record
maintained by the Department of the Air Force be removed.

He be reinstated to the grade of lieutenant colonel.

The Article 15 punishment imposed on him on 27 Jul 00 be set aside and
all rights and properties of which he was deprived be restored.

He be provided any further relief, in addition to the above,  but  not
limited to payment of any money due as a result of the  correction  of
his military records, as deemed necessary and/or appropriate in  order
to provide him full and complete relief.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a six-page brief of counsel,  with  an  attached  six-page  report,
prepared by an expert in computer technology retained by applicant and
counsel, counsel provides a detailed account of the events leading  to
the Article 15,  the  contested  OPR,  and  subsequent  Officer  Grade
Determination (OGD).  He provides input from the  report  prepared  by
his expert advisor in computer security  to  support  the  applicant’s
view as to how pornographic material ended up on  his  computer.   The
applicant believes that someone hacked his computer from a remote site
and obtained his personal information  or  gained  access  during  the
frequent times he was away from his desk.

In addition to the explanation  offered  as  to  how  the  applicant’s
computer may have been hacked, counsel asserts that there is one other
matter that has been ignored and should be  explored.   The  applicant
had absolutely no reason to download pornographic  material  onto  his
work  computer.   The  applicant  is  well  versed  in  computers  and
possessed one at home.  He knew that the Base computers  were  subject
to monitoring and that his actions on government  computers  could  be
detected.   In  fact,  when  the  applicant  first  learned   of   the
investigation (not knowing that he was the subject), he took no  steps
to “cleanse” his own computer.  Both of these facts demonstrably prove
that, as far as he knew,  the  applicant  had  nothing  to  hide.   To
further  demonstrate  this  point,  every  single  witness   who   was
interviewed in this case (with the exception of the applicant’s  wife)
testified that he was a person of impeccable character, who would  not
engage in misconduct of this  sort.   After  interviewing  a  host  of
witnesses, the OSI could not find a character witness whose  testimony
would support their pre-determined outcome, so they went as far as  to
look up the applicant’s  ex-wife,  from  whom  he  had  been  bitterly
divorced for several years.  Her testimony did  not  directly  support
their “conclusion.”

The OSI report formed nearly the entire  basis  for  the  Article  15,
contested OPR,  and  subsequent  OGD.   Given  their  expert’s  report
containing a damning indictment of the quality of the OSI report,  and
given the evidence that the applicant was likely the unwitting  victim
of hackers, they contend that none  of  these  actions  can  withstand
scrutiny.

The shortcomings on the OSI’s part can be explained partly due to  the
fact that the lead investigator had less  than  two  years  experience
with OSI and had never done a computer related investigation.

While the applicant’s OGD action was  at  base  level,  his  chain  of
command all recommended that he be allowed to retire as  a  lieutenant
colonel.   When  higher  headquarters   considered   his   case,   the
recommendations changed.   Counsel  asserts  that  someone  at  higher
headquarters advised the commanders at base level that they needed  to
change their recommendations.  This was unlawful command influence.

The evidence in this case shows that the applicant was the victim of a
crime, not the perpetrator, and  that  higher  headquarters  illegally
pressured  the  local   chain   of   command   into   changing   their
recommendations.

Counsel’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 2  Jun  82.   He
was promoted up to the grade of lieutenant colonel.  A review  of  the
applicant’s ten OPRs prior to the contested report  indicates  overall
ratings of “meets standards.”  On 12 Jan  00,  the  OSI  initiated  an
investigation of the applicant after being provided information by the
Base Information Assurance Officer that the applicant  had  browsed  a
pornographic internet site on his work computer for  approximately  29
minutes.

On 11 Feb 00, the applicant filed an Inspector General (IG)  complaint
with the Air Force IG  regarding  the  conduct  of  the  investigation
conducted of the allegations against him by the OSI.  The  applicant’s
complaint was  transferred  to  Headquarters  Air  Force  OSI  IG  for
analysis and appropriate action.  AFOSI/IG determined that  there  had
been no wrongdoing in violation of policy or law and that  the  issues
raised by the applicant  did  not  qualify  for  investigation  in  IG
channels in accordance with AFI 90-301.  In addition, their review  of
the matter disclosed  that  agents  with  appropriate  expertise  were
utilized, and  the  investigation  otherwise  appeared  to  be  within
logical parameters.

On 14 Jul 00, the applicant was notified by his Wing Commander that he
was considering whether to recommend to the Numbered Air  Force  (NAF)
Commander that he be punished under Article 15 for alleged  misconduct
in violation of Article 92, Uniform Code of Military Justice, in  that
he did on divers occasions, between on or about 9 Nov  99  and  on  or
about 25 Jan 00, fail to obey a lawful  general  regulation,  to  wit:
paragraph 6, Air Force Instruction 33-129, Transmission of Information
via the internet, dated 1 Aug 99, by  wrongfully  using  a  government
computer for other than official and  authorized  government  business
and to display sexually explicit material.  After consulting  counsel,
the applicant waived his right to demand trial  by  court-martial  and
accepted proceedings under Article 15.  He did not request to  make  a
personal appearance and attached a written presentation.   On  27  Jul
00, the NAF Commander determined that he  had  committed  the  alleged
offense.  He imposed punishment consisting of forfeiture  of  $2718.00
pay per month for two months and a reprimand.  The  applicant  elected
not to appeal the punishment.  The NAF  commander  also  notified  the
applicant of  his  intent  to  file  the  record  of  the  Article  15
punishment in the applicant’s Officer HQ Air  Force  Selection  Record
and of the applicant’s right to submit  a  statement.   The  applicant
elected not to submit a statement.  On 4 Aug  00,  the  NAF  Commander
determined that the record of the Article 15 punishment would be filed
in the Officer HQ Air  Force  Selection  Record  and  Officer  Command
Selection Record.

As a result of the offense that he was punished under Article  15  the
applicant’s OPR for the period 16 Feb 00 through 15 Feb 01 was  marked
as “Does Not Meet Standards” on item 5,  Judgment  and  Decisions,  in
Section V, Performance Factors.  The OPR was referred to the applicant
on 16 Apr 01.  The applicant provided  a  written  response  from  his
attorney on 24 Apr 01.

On 22 Feb 01, the applicant declined an Active Duty Service Commitment
incurred for advanced flying  training  (AFT).   He  was  required  to
submit an application for retirement or separation within  7  calendar
days.  The applicant submitted an application requesting a  retirement
date of 1 Sep 01.  However, due to the  requirement  for  a  mandatory
OGD, the request was delayed.  The purpose of the OGD was  to  see  if
the  applicant  served  satisfactorily  in  the  grade  of  lieutenant
colonel.

The applicant’s Wing Commander initially recommended to  the  Numbered
Air Force Commander that the applicant  be  retired  as  a  lieutenant
colonel.   On  2  Aug  01,  the  NAF  Commander  concurred  with   the
recommendation  and  recommended  to  the  AETC  Commander  that   the
applicant be retired in the grade of lieutenant colonel.   On  24  Oct
01, the NAF Commander submitted  a  new  recommendation  to  the  AETC
Commander and recommended that the applicant be  retired  in  a  grade
less  than  lieutenant  colonel  due  to  his  extensive  use  of  his
government computer to access pornographic sites both as a  major  and
lieutenant colonel.  On 26 Oct  01,  the  AETC  Staff  Judge  Advocate
concurred with the NAF Commander and recommended to the AETC Commander
that the applicant  be  retired  in  a  grade  lower  than  lieutenant
colonel.   They  concluded  that   the   applicant   did   not   serve
satisfactorily as a lieutenant colonel based on the finding  that  the
applicant used his government computer to  access  pornographic  sites
from Dec 97 through Jan 00.   Since  the  applicant  did  not  pin  on
lieutenant colonel until 1 Sep 98, they concluded that the applicant’s
misconduct included a period while he served in the  grade  of  major.
On 31 Oct 01, the Wing Staff Judge Advocate recommended  to  the  Wing
Commander that he forward a recommendation to the Secretary of the Air
Force (SAF) or his designee through  channels  recommending  that  the
applicant be retired  from  the  Air  Force  in  a  grade  lower  than
lieutenant colonel.

On 1 Nov 00, the Wing Commander submitted a new recommendation to  the
NAF Commander recommending that the applicant be retired  in  a  grade
lower  than  lieutenant  colonel.   The  NAF  Staff   Judge   Advocate
recommended to the NAF Commander that he recommend to the SAF that the
applicant be retired in a grade less than  lieutenant  colonel.   They
noted  that  subsequent  to  their  initial  recommendation  that  the
applicant be retired as a lieutenant colonel,  the  AETC  Staff  Judge
Advocate had identified in the OSI report that the applicant used  his
government computer to access pornographic sites while  still  serving
as a major.  On 1 Nov 01, the NAF Commander recommended  to  the  AETC
Commander  that  the  applicant  be  retired  at  a  grade  less  than
lieutenant colonel.  On 6  Nov  01,  the  AETC  Staff  Judge  Advocate
prepared an addendum to their legal review of 26 Oct 01 based  on  the
additional recommendations submitted by the Wing and  NAF  commanders.
They continued to recommend that the applicant be retired in  a  grade
lower than lieutenant colonel.  They noted  that  on  1  Nov  01,  the
applicant’s wing commander changed his initial recommendation that the
applicant be allowed to retire as a lieutenant colonel.   They  opined
that it appeared that the Wing Commander changed his mind based on the
duration of the applicant’s misconduct.  On   13 Nov 01, the AETC Vice
Commander recommended to the Air Force Personnel Board (AFPB) that the
applicant be retired in a grade lower than lieutenant colonel.  On  10
Dec 01, the AFPB found that the applicant did not serve satisfactorily
as a lieutenant colonel, but did serve satisfactorily as a major.  The
Board noted that the applicant’s misconduct occurred over  the  entire
time the applicant  was  a  lieutenant  colonel.   The  applicant  was
retired in the grade of major effective 1 Jan 02.

Additional facts relevant to this application  are  contained  in  the
evaluations prepared by the appropriate offices of the Air Force found
at Exhibits C, D, and E.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to  set  aside
the Article 15 he received.

In his handwritten statement to OSI, the applicant admitted facts that
prove his guilt.  On 26 Jan 00, the applicant  waived  his  rights  to
remain silent and consult with a lawyer and wrote  a  statement  about
the  use  of  his   government   computer.    The   applicant   denied
intentionally accessing child pornography sites.  However, he admitted
accessing web pages, which appear to be for other  than  official  and
authorized government business.

The applicant makes several arguments in support of  his  contentions.
He argues that the Base server was programmed to recognize words  such
as “teen” and “nude,” to  identify  attempts  to  access  pornographic
material, and that this method of searching for child  pornography  is
“a colossal waste of taxpayer money” as even a  search  for  teen-aged
clothing would alert the system.  This  argument  is  flawed  in  many
respects.  First, the method succeeded, as images  of  naked  children
were  found  on  the  applicant’s  government  computer.   AFI  33-129
specifically prohibits using a  government  computer  for  other  than
official and  authorized  government  business  as  well  as  storing,
processing, displaying, sending,  or  otherwise  transmitting  obscene
language or material, including pornography.  The applicant was  found
to have violated AFI 33-129  by  using  his  government  computer  for
unauthorized  purposes  as  well  as  to  display  sexually   explicit
material.

The applicant also argues that he took no steps to “cover his  tracks”
after he was made aware of the OSI investigation.   However,  the  day
after the applicant made his incriminating statement to OSI, he  asked
his unit computer manager (UCM) to back up his hard drive on zip disks
and then reformat his hard drive.  The UCM did  not  comply  with  his
request.  The applicant also asked co-workers  on  numerous  occasions
whether they remember seeing him at specific times, then  asking  them
to tell OSI.

The applicant claims he was the unwitting victim of a computer hacker,
who downloaded pornographic material onto his hard drive, and used the
applicant’s credit  card  to  purchase  pornographic  material.   This
argument  ignores  the  financial  data  the   OSI   collected   while
investigating the applicant’s claims.   The  applicant  only  reported
some of the credit card transactions used to purchase  pornography  as
fraudulent.  A close  look  at  the  applicant’s  government  computer
showed that the time the pornographic  sites  were  accessed,  e-mails
were sent from the applicant’s e-mail account,  and  work-related  and
personal documents were being accessed.  Put simply, a computer hacker
would have had to been using four of the applicant’s credit cards over
two years to access pornographic web  sites  while  also  sending  the
applicant’s  e-mails  and  modifying  his  personal  and  professional
documents without the applicant or anyone else noticing.

The applicant suggests he  had  no  reason  to  download  pornographic
material on his work computer and, if he were at all inclined to  view
pornographic material, he would do it at home.  None of the  witnesses
interviewed knew or  could  think  of  anyone  who  would  access  the
applicant’s government computer to view  pornography.   The  applicant
failed to present any evidence to the  NAF  Commander  to  refute  the
allegation.  In his written response to the Article 15, the  applicant
never stated he did not commit the offense.   Rather,  he  argued  the
same  points  contained  in  this  application.   He  called  the  OSI
investigation a “witch hunt” and the alleged offense a “violation of a
minor Air Force Instruction.”

There was sufficient evidence for the commander to determine that  the
applicant had committed the offense.   A  set  aside  should  only  be
granted when the evidence demonstrates an error or a clear  injustice.
The evidence presented by the applicant  is  insufficient  to  warrant
setting aside the Article 15  action,  and  does  not  demonstrate  an
equitable basis for relief.

The complete evaluation, with attachment, is at Exhibit C.

AFPC/DPPPEP recommends denial of the applicant’s request to  void  the
referral OPR rendered on him for the period 16 Feb 00 through  15  Feb
01.

Evaluators are strongly encouraged to comment in  performance  reports
on misconduct that reflects a disregard of the law, whether civil  law
or the UCMJ, or when adverse actions such as Article  15,  Letters  of
Reprimand, etc. are taken.

The complete evaluation is at Exhibit D.

AFPC/DPPRRP  recommends  denial  of  the  applicant’s  request  to  be
reinstated to the grade of lieutenant colonel.  The applicant received
an Article 15 within two years of his requested  retirement  date.   A
mandatory OGD was required.  The applicant was subsequently found  not
to have served satisfactorily in the grade of lieutenant colonel.  His
case was properly processed in accordance with established procedures.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force  evaluations.   Counsel
asserts that the advisory opinion contains both factual and procedural
errors, and should be disregarded.

Counsel responds that it is “interesting and distressing” that neither
the advisory opinion from AFPC/DPPEP or AFLSA/JAJM  addresses  one  of
the most critical  aspects  of  the  case,  which  is  the  incredible
exertion  of  undue  command  influence  on  the  processing  of   the
applicant’s OGD package.  Counsel states that the applicant  laid  out
information in great detail in the original submission, yet the  legal
advisor simply doesn’t address this issue.

Counsel states that the assertion  that  the  NAF  Commander  was  not
convinced by the applicant’s defense is disingenuous.   The  applicant
never raised these issues, as evidence of hacking  was  only  recently
uncovered.  Counsel provides references from the  report  prepared  by
their expert on how the applicant’s computer could  have  been  hacked
into.

Counsel states that there were expenses on the applicant’s credit card
statements, and  that,  for  the  most  part,  he  did  contest  them.
However,  such  purchases  do  not  show  up  as  “child   pornography
purchased,” but, rather, as routine purchases.  Counsel  asserts  that
if one were using his computer to make purchases on line,  they  would
hardly note a purchase of $9.95 or so to some Internet site.   Counsel
points out that according to the  report  prepared  by  their  expert,
hacking of this sort was quite prevalent at Air Force bases during the
timeframe in question.  He states that there was a number of  officers
at the base where the applicant  was  assigned  whose  Officer’s  Club
Master Cards were fraudulently used.  Interestingly, this is the  card
the applicant used to make  on-line  purchases  and  he  had  actually
reported the card as stolen.  This fact was not included  in  the  OSI
report or legal advisor’s recommendation.  Counsel  asserts  that  the
legal  advisor’s  statement  that  there  was  no  evidence  that  the
applicant’s computer had been infiltrated is partially true.   At  the
time, the applicant did not possess this evidence.   It  was  not  his
burden to prove his innocence.  If anyone, OSI should have retained  a
forensics expert, instead of relying, as they did, on  an  agent  that
had conducted a single investigation in the field.

Counsel also addresses the contention that the  applicant  waived  his
right to have his case considered by the AFBCMR.  The applicant  chose
not to contest the Article 15, choosing instead to  let  the  evidence
stand (or fall) on its own.  He was not privy to the evidence that his
computer had been hacked and believed he  would  get  a  thorough  and
impartial review from the Wing Commander.

Finally, counsel asserts that  the  statement  that  the  findings  of
guilty  should  not  be  overturned  unless  they  are  arbitrary   or
capricious is an  incorrect  statement  of  law.   The  applicant  has
uncovered new evidence that his computer was infiltrated.   The  Board
has an independent duty to determine whether they are convinced of his
guilt, based on this evidence.

Counsel’s complete submission is at Exhibit G.

_________________________________________________________________

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.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the primary basis for our conclusion that the applicant has  not  been
the victim of an error or injustice.  We note counsel’s assertion that
undue command influence was  exerted  during  the  processing  of  the
applicant’s OGD package.  However,  he  has  not  provided  sufficient
evidence to support this claim.  In our review of the “Expert Report,”
we find that it primarily hypothesizes  over  the  possible  ways  the
applicant’s computer could have been accessed by unauthorized hackers.
 We do not dispute the accuracy of  these  assertions.   However,  the
“Expert  Report”  does  not  present  any   concrete   evidence   that
unauthorized access actually occurred.  We  find  the  OSI  report  of
investigation more credible as it does  provide  specific  details  of
actions that a hacker theory simply does not explain away.  We weighed
the criticisms made by counsel  and  the  computer  technology  expert
regarding the fairness of the  OSI  investigation,  but  do  not  find
sufficient  evidence  that  the  investigation  was  conducted  in  an
improper manner.  We note  that  an  Inspector  General  investigation
failed to disclose wrongdoing in violation of policy or law  regarding
the investigation.  Therefore, in  the  absence  of  evidence  to  the
contrary, we find no compelling basis to recommend granting the relief
sought in 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-
03086 in Executive Session on 19 June 2003, under  the  provisions  of
AFI 36-2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. David W. Mulgrew, Member
      Mr. Vaughn E. Schlunz, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 17 Jan 03, w/atchs.
    Exhibit D.  Memorandum, AFPC/DPPPEP, dated 14 Feb 03.
    Exhibit E.  Memorandum, AFPC/DPPRRP, dated 21 Feb 03.
    Exhibit F.  Letter, SAF/MRBR, dated 28 Feb 03.
    Exhibit G.  Letter, Applicant’s Counsel, dated 27 Mar 03




                                   OLGA M. CRERAR
                                   Panel Chair