RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2003-00944
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXXX                  COUNSEL: NONE

      XXXXXXXXXXX                            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, UCMJ, action imposed on 27 July 2001, be set aside, and  all
reference to it be removed from his official Air Force records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His Article 15 punishment was unjust.  During the  Article  15  proceedings,
several of his requests were denied without due reason or went ignored.   He
was  improperly  denied  an  opportunity  to  give  a  written  and   verbal
presentation to the Article 15 imposing  commander  to  rebut  the  charges.
Instead he gave his presentation to his  immediate  commander.   During  the
Article 15 proceedings, he brought up  several  issues  of  concern  on  his
behalf, which went unanswered.  After he was found guilty, he was  denied  a
copy of his presentation, which greatly hampered his  appeal  process.   The
majority of the evidence used against  him  was  taken  off  of  his  office
computer.  During his  assignment,  at  least  five  other  individuals  had
access to his computer for various software upgrades and  uses.   After  his
computer was seized, it was stored in a location where  at  least  15  other
personnel had access.  His computer had been tampered with while in  storage
to remove the profiles of other individuals who accessed  his  computer  and
computer security logs had been edited to show only  evidence  against  him.
Any evidence that would have been able to prove  his  innocence  was  edited
out.  The security logs showed he was logged  onto  his  computer  at  times
when he has witness corroboration that he was nowhere near his computer.

In support of his application,  he  provides  a  personal  statement  and  a
memorandum  of  record  from  a  computer   security   manager   identifying
inconsistencies and probable oversights in the case against  the  applicant.
The applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 20 February 1987, the applicant enlisted in the Army  National  Guard  at
the age of 18 in the grade of airman basic for a period of eight years.   He
was progressively promoted to the rank of sergeant  (E-5)  with  a  date  of
rank of 17 January 1992.  On 19 February 1994, the  applicant  was  released
from the Army National Guard and transferred to  Individual  Ready  Reserve.
On 28 November 1994, he enlisted in the Regular Air Force  in  the  rank  of
staff sergeant (E-5)  for  a  period  of  four  years  and  entered  Officer
Training School (OTS).  On 16 March 1995,  after  attending  and  graduating
from OTS, the applicant was honorably discharged  to  accept  a  commission.
On 17 March 1995, the applicant was tendered and accepted an appointment  as
a second lieutenant, Reserve of the Air Force (ResAF),  and  entered  active
duty on the same date.  He is currently serving on active duty in the  grade
of captain with an effective date and a date of rank of 17 March 1999.

On 29 June 2001, his commander notified  the  applicant  of  his  intent  to
recommend the applicant be punished under Article 15, UCMJ, for violating  a
lawful regulation (AFI  33-129,  paragraph  6.1.3)  by  wrongfully  storing,
processing,  and  displaying  pornography  and   other   sexually   explicit
materials on a government computer, in violation of Article 92, UCMJ.  On  9
July 2001, after consulting with military  defense  counsel,  the  applicant
waived his right to demand trial by court-martial and  accepted  nonjudicial
punishment.  He submitted a written presentation  to  and  made  a  personal
appearance before his commander.  The written presentation and a summary  of
the personal appearance were forwarded to the  imposing  commander.   On  27
July 2001, having considered the evidence and the  applicant’s  response  to
the Article 15, the imposing authority determined the applicant  did  commit
the offense charged.  Punishment consisted of a reprimand and forfeiture  of
$600 pay  for  two  months.   The  applicant  appealed  the  punishment  and
requested the action be set  aside.   The  applicant’s  appeal  was  denied.
Legal reviews completed on  17  and  26  September  2001  found  the  record
legally sufficient.

The applicant received a referral Officer Performance Report (OPR)  for  the
period 17 March 2001 through 30 October  2001.   On  22  January  2002,  the
applicant submitted a rebuttal to the referral OPR.  On 27 March  2002,  the
Additional Rater and Reviewer concurred with the assessment of the Rater.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of relief because the  applicant’s  contentions
are without  merit.   JAJM  states  the  material  involved  in  this  case,
concededly  pornographic,  was  accessed   from   unauthorized   sites   and
downloaded to the applicant’s workplace computer.   Those  actions  were  in
clear violation of  a  lawful  general  regulation,  AFI  33-129,  paragraph
6.1.3, that proscribes  the  storing,  processing,  displaying,  sending  or
otherwise transmitting of offensive or obscene  (including  pornographic  or
sexually explicit) language or material through a government computer.   The
applicant claims to be factually innocent; however, he waived his  right  to
be tried for his offense by court-martial where the burden  of  proof  would
have been beyond a reasonable doubt, when he  chose  to  accept  Article  15
proceedings,  placing  the  determination  of  guilt  or  innocence  in  his
commander’s hands.  His commander  ultimately  resolved  the  issue  of  the
alleged misconduct against the applicant after reviewing  all  the  evidence
before him to make  the  decision.   The  appellate  authority  agreed,  and
provided him no relief on appeal.

JAJM states that 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 the field commanders.  In  the  case  of
nonjudicial punishment, Congress (and the  Secretary  via  AFI  51-202)  has
designated only two officials with the responsibility  for  determining  the
appropriateness of an otherwise lawful punishment:  the  commander  and  the
appeal authority.  So long as they are acting within the scope of  authority
granted them by law, their judgment should not  be  disturbed  just  because
others might disagree.  Commanders “on the scene” have first-hand access  to
facts and a unique appreciation for the needs of morale  and  discipline  in
their command that even  the  best-intentioned  higher  headquarters  cannot
match.  A member accepting non-judicial punishment proceedings  may  have  a
hearing with the imposing commander.  The member may  have  a  spokesman  at
the hearing, may request that witnesses appear and testify, and may  present
evidence.  When a commander and offender are not collocated,  or  any  other
time  when  a  personal  appearance  with  the  imposing  commander  is  not
practical, the member appears before a subordinate commander who prepares  a
memorandum summarizing the presentation.   The  subordinate  commander  then
forwards the memorandum to the superior commander, along  with  all  written
matters  submitted  by  the  member.   The  commander  must   consider   any
information offered during that hearing and must be  convinced  by  reliable
evidence that the member committed the offense before  imposing  punishment.
Members who wish to contest their commander’s determination or the  severity
of the punishment imposed may appeal to  the  next  higher  commander.   The
appeal authority may set aside the nonjudicial punishment action, set  aside
the punishment, decrease its severity, or deny the appeal.

It is JAJM’s opinion that the commander’s determination that  the  applicant
had  committed  the  offense  charged  is   certainly   supported   by   the
overwhelming circumstantial evidence in this case.  The evidence  of  e-mail
usage, taken together with the pattern, source, and timing  of  unauthorized
Internet access, supports  the  guilt  of  the  applicant.   The  AFLSA/JAJM
evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims the Air Force evaluation  made  several  assumptions,
misunderstood  his  statements,  and   disregarded   additional   evidence
supporting his innocence and contentions that another individual committed
the offenses of which he was found guilty.  The applicant’s review  is  at
Exhibit E.

_________________________________________________________________

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.  Evidence  has  not  been  presented  which
would lead us to believe that the  nonjudicial  punishment,  imposed  on  27
July 2001, was improper.  We find no evidence of  error  in  this  case  and
after thoroughly reviewing the documentation  provided  in  support  of  his
appeal, we do not believe he has suffered an injustice.  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, the applicant was offered  every  right  to  which  he  was
entitled.  He  consulted  with  counsel,  and  submitted  written  and  oral
matters for review by the imposing commander and was given  the  opportunity
to present his  arguments.   The  imposing  commander  determined  that  the
applicant did commit the offense  and  imposed  punishment.   The  applicant
appealed the punishment and after considering  the  matters  raised  by  the
applicant in his  appeal,  the  commander  denied  the  request.   There  is
nothing in the evidence provided, other  than  the  applicant’s  assertions,
which would lead us to believe that the actions by  the  imposing  commander
were inappropriate or that he did not have access to all of the  appropriate
information necessary on which to base his decision.  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 this Article 15 punishment,  or  that
the punishment exceeded the maximum authorized by the UCMJ.   Therefore,  we
defer to the opinion of legal authority regarding this  issue  and  find  no
evidence of  error  or  injustice.   Accordingly,  based  on  the  available
evidence of record, we find no basis upon which to  favorably  consider  his
request that the Article 15 be removed from his records.

_________________________________________________________________

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 this application in  Executive
Session on 20 November 2003, under the provisions of AFI 36-2603:

            Mr. Richard A. Peterson, Panel Chair
            Ms. Kathleen F. Graham, Member
            Mr. Albert Ellet, Member

The following documentary evidence for AFBCMR  Docket  Number  BC-2003-00944
was considered:

     Exhibit A.  DD Forms 149, dated 10 Mar 03.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 24 Apr 03.
     Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.
     Exhibit E.  Applicant’s Rebuttal, dated 4 Jun 03.




                                  RICHARD A. PETERSON
                                  Panel Chair