RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                 DOCKET NUMBER:  BC-2004-03464
            INDEX CODE:  131.05, 126.04, 111.02, 111.05, 100.06
                                        COUNSEL:  None

                                        HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  7 Jul 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His grade of technical sergeant  (TSgt)  be  reinstated  with  the
original date of rank (DOR) of 1 Jul 02, and he be allowed to test out
of cycle for master sergeant  (MSgt);  or,  in  the  alternative,  his
original DOR of 1 Jul 98 for staff sergeant (SSgt) be reinstated.

2.  The Enlisted Performance Report (EPR) for  the  period  15 Jan  03
through 14 Jan 04 be removed from his records.

3.  The punishment imposed upon him under Article 15, Uniform Code  of
Military Justice (UCMJ), dated 26 Sep 03, be set aside.

4.  Change his reenlistment  eligibility  status  from  ineligible  to
eligible.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has over 12 years of impeccable service and is innocent of all  the
allegations.  He was “spammed” while looking  at  karate  photos  with
another  enlisted  member,  SSgt   G--.    The   “spamming”   included
downloading.  SSgt G-- told investigators  he  did  not  see  anything
indicating  a  program  or  picture  was  being  downloaded   to   the
applicant’s computer.

The commander and the AF Office of Special Investigations (AFOSI)  did
not take the time to properly consider the  evidence.   If  the  AFOSI
reported malicious logic was detected between,  on  or  about  27 Mar-
15 May 03, why was his computer not  immediately  confiscated  on  the
first detection?  No  AFOSI  or  Information  Assurance  investigation
report stated monitoring was being conducted during the 50-day  period
nor was there a  letter  submitted  to  his  wing  commander.   Proper
procedures were not followed.

He was hospitalized and on convalescent leave for 27 days during  that
50-day period.  He points out that one file’s “date last accessed”  of
17 Apr 03, occurred when he was in the hospital for emergency surgery.
 He also identifies other dates that pornography was accessed when  he
was not at his computer, such  as  taking  his  mother-in-law  to  the
airport,  being  on  convalescent  leave,  etc.   His   personal   and
professional schedule,  school  and  karate  instruction  limited  his
access to his government computer.   Co-workers’  statements  indicate
they never saw him viewing pornography, which is interesting since his
computer purportedly had over 500 megabytes of pornography.

Others had access to the building and his computer.  On 17 May  03,  a
lot of pornographic activity was present under his profile  ID  during
the three-hour confiscation period and in the hands of  senior  airman
(SRA) L--, the Functional Systems Administrator.  He no longer had any
government computer  logon  rights.   He  asks  why  was  pornographic
activity recorded in the temporary Internet files during the time  SRA
L-- had his  computer.   Base  Information  Assurance  stated  it  was
possible his IP address was reassigned to someone  else  on  the  base
while his IP address was still under investigation.

The  applicant’s  complete  submission,  which  includes  many  strong
character statements and other attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  on  12 Dec  91,  and
reenlisted for a period of six years on 11 Dec 00.  He was promoted to
the grade of TSgt effective and with a DOR of 1 Jul  02.   During  the
period in question, the applicant was  serving  as  the  air  terminal
operations supervisor with the 75th Logistics Readiness  Squadron  (75
LRS) at Hill AFB, UT.

On 16 Apr 03, the applicant became ill around noon and  complained  of
severe abdominal pain.  He was advised  to  report  to  the  emergency
room,  whereupon  he  was  admitted  for  acute  appendicitis  and  an
appendectomy was performed.  On 19 Apr 03, he was discharged from  the
hospital and placed on  2-4  weeks  of  convalescent  leave.   He  was
cleared to return to work on 11 May 03.

On 17 May 03, the AFOSI at Hill AFB was briefed by the  75  LRS  First
Sergeant that SRA L--, the Computer System  Administrator,  discovered
pornographic pictures on the applicant’s government computer when  SRA
L-- was remotely updating the virus  program  on  all  of  the  unit’s
computer systems on that date.  The AFOSI, the First Sergeant, and SRA
L-- reviewed the applicant’s hard drive which revealed  several  slide
show files and pictures containing pornographic pictures and one slide
show file was dedicated  to  bestiality.   The  file  review  did  not
disclose any child pornography.  SRA L-- indicted  the  applicant  had
previously  told  him  the  pictures  on  his  computer  were  from  a
“spamming” incident which occurred on 15 May 03.  SRA L--  stated  the
pictures located in the  slide  show  files  and  the  other  pictures
located in the applicant’s “My Documents” and Misc” folders could  not
have been placed on his computer’s hard drive or arranged  into  slide
show files through a “spamming” incident.  SRA L-- opined the only way
this could have occurred was by  someone  intentionally  placing  them
into the slide show files  or  into  the  “My  Documents”  and  “Misc”
folders on the applicant’s hard  drive.   SRA  L--  stated  the  AFOSI
retrieved the applicant’s computer from the First Sergeant  on  19 May
03 for further analysis.

On 2 Jun 03, after being advised of his rights, the applicant provided
the AFOSI a sworn statement indicating that,  on  15 May  03,  he  was
logged onto his government email and his Yahoo email  account  at  the
same time. He was showing a SSgt  G--  some  old  karate  pictures  of
himself when a message appeared on the screen indicating the applicant
had an incoming message.  The applicant clicked on  the  message  and,
after approximately five seconds, a pornographic picture  appeared  on
the screen.  He attempted  to  exit  out  of  the  picture  but  other
pictures appeared on the screen.  He noticed  in  the  top  left  hand
corner of the screen a window indicating,  “Down  loading  now.”   The
applicant stated that, no matter what he  did  to  try  to  close  the
windows, more pictures appeared.  On 17 May 03, he found his  computer
had been confiscated.  He and SSgt G-- told a 1st lieutenant about the
15 May 03 incident.  He also told SRA L--.

On  31 Jul  03,  AFOSI  interviewed  the  applicant.    After   rights
advisement, the applicant requested legal counsel  and  the  interview
was terminated.

The AFOSI Media Analysis Report (Exhibit 4  of  the  AFOSI  Report  of
Investigation (ROI)) was completed on 12 Aug 03, and  summarized  that
the applicant’s computer had 16 pornographic pictures, 35 pornographic
movie  clips  and  14  Power  Point  Presentation   files   containing
pornographic pictures saved to different folders which were located on
the hard drive.   The  applicant’s  Temporary  Internet  Files  folder
contained 32  folders  of  pictures  and  movie  clips  that  depicted
pornographic material.  The types of pornographic material depicted in
the pictures, movie clips, and Power  Point  Presentation  files  were
adult,  homosexual  (both  gay  and  lesbian),  incest,  bondage   and
bestiality.

On 14 Aug 03, the AFOSI interviewed SSgt G--, who indicated he went to
ask the applicant a question and found him sitting  at  his  computer.
SSgt G-- noticed a “Pop Up”  file  had  appeared  on  the  applicant’s
computer screen.  He looked closer and noticed it was  a  pornographic
“Pop Up.”  He told the applicant to close the file.  As  soon  as  the
applicant did so, more pornographic “Pop Up” appeared, for a total  of
three.  He told the applicant to turn off his computer, which he did.

The AFOSI investigation ended on 14 Aug 03.

On 20 Aug 03, the applicant was notified of his commander's intent  to
impose nonjudicial punishment upon him for violating a lawful  general
regulation by wrongfully displaying offensive or obscene materials  on
his government computer between, on or about 27 Mar and  on  or  about
15 May 03.  On 28 Aug 03, after consulting with counsel, the applicant
waived his right to a trial by  court-martial,  requested  a  personal
appearance and submitted a written presentation.  On  26 Sep  03,  his
commander found him guilty and  imposed  punishment  in  the  form  of
reduction to the grade of SSgt with a  new  DOR  of  26 Sep  03.   The
applicant’s appeal was denied on 17 Oct 03.  The Article 15 was  found
legally sufficient and  filed  in  his  Unfavorable  Information  File
(UIF).

On 27 Jan 04, the 14 Jan 04 EPR was referred to  the  applicant.   The
rater had marked the Performance Factors relating to  the  applicant’s
on/off duty conduct and supervisory/leadership ability in  the  lowest
categories.  All other Performance  Factors  were  “firewalled.”   The
rater also commented on the Article 15 for the applicant’s  unofficial
use of a government computer and gave him an overall rating of 2  (not
recommended for promotion  at  this  time).   Although  the  applicant
rebutted, the additional rater concurred with the rater.

A profile of the applicant’s performance reports follows:

            PERIOD ENDING         OVERALL RATING
              5 Dec 96                             5
              5 Dec 97                             5
              5 Dec 98                             5
             31 Jul 99                             5
             31 Jul 00                             5
             14 Mar 01                             5
             14 Mar 02                             5
             14 Jan 03                             5
            *14 Jan 04                             2
             14 Jan 05                             5

*Referral EPR

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  contends  the  commander  concluded  the   applicant   had
wrongfully displayed pornography on his  government  computer.   There
was sufficient evidence for the commander to determine the offense had
been committed.  The applicant’s arguments failed to  convince  either
the commander  or  the  appellate  authority.   While  different  fact
finders may have come  to  a  different  conclusion,  the  commanders’
findings are neither  arbitrary  nor  capricious  and  should  not  be
disturbed.  When evidence of an error or  injustice  is  missing,  the
Board should not substitute its judgment for that of field commanders.
 It is generally agreed that 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.  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.  Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPP notes AFLSA/JAJM determined there were  no  legal  errors
requiring corrective action regarding the Article 15  and  recommended
the Board deny the  appeal.   They  defer  to  JAJM’s  recommendation.
Since the Article 15 has not been set aside, the  referral  report  is
considered an accurate assessment of the applicant’s performance.   If
the Board sets aside the  Article  15,  DPPP  recommends  the  EPR  be
reaccomplished and provided in accordance with AFI 36-2401.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant takes exception to both evaluations.   Contrary  to  the
evaluations’ assertions, his computer was not seized by the AFOSI  but
first by SRA L--, which was an improper procedure.  SRA  L--  had  his
computer for four hours before the AFOSI took possession.  Pornography
was being accessed and recorded onto the Temporary Internet Files at a
time he no longer had his  computer  logon  rights.   The  most  vital
evidence is that one file was accessed on 17 Apr 03, while he  was  in
the hospital.  On that date, he undoubtedly was not the  one  viewing,
creating, or modifying explicit material on his  government  computer.
No  AFOSI  or  Information  Assurance  investigation   report   stated
monitoring was being conducted during the  50-day  period  nor  was  a
letter sent to his commander informing her of any ungoverned  activity
present.  On 4 Apr 03, someone accessed a file when he  was  off  that
day.  The supporting statements he provided indicate no  one  observed
him doing any ungoverned activity on his government computer.  In all,
the Media Analysis recorded files being created, modified, or accessed
on 4, 7, 8, 10, 11, and 15 Apr 03, and 14, 15 and 17 May 03.  All  the
dates can be accounted for with specific times.  Despite his  request,
during the Article 15 proceedings, neither the commander nor the AFOSI
were  able  to  produce  a  Media  Analysis  of  the  times  [emphasis
applicant’s] on these files until  after  his  punishment.   On  these
dates he was working  on  the  flight  line  during  duty  hours.   He
provides signed copies of cargo manifests and load plans he signed  as
Load Team Supervisor as proof he was working on the flight  line.   He
provides a chronology of his activities during  the  pertinent  dates.
As indicated by the Working Group Manager of  the  Deployment  Control
Center, 75 Logistics Readiness, who has  over  25  years  of  computer
experience, “Someone with computer rights or knowledge, whether  legal
or illegal, can remotely connect to another  user’s  computer  without
their consent or knowledge . . . remote connects do exist . .  .  pop-
ups do not occur while working on Microsoft Word documents,  Excel  or
Power Point programs.”  He asks the Board to  carefully  consider  all
the evidence he has  submitted,  as  well  as  his  complete  military
record.

The applicant’s complete response, with attachments, is at Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice to  warrant  partial  relief.   We
have  thoroughly  reviewed  the  available  evidence   and   carefully
considered  the  applicant’s  contentions.   This  case  is  extremely
difficult in that the applicant may have been  guilty  of  downloading
all of the pornography contained on his computer, someone  else  could
have either remotely or directly  accessed  his  apparently  unguarded
computer as he alleges  or,  very  possibly,  a  combination  of  both
scenarios may have occurred.  While  he  raises  some  questions  with
respect to a few dates involved, he has  not  overcome  the  remaining
evidence.   Further,  the  applicant’s  and  SSgt   G--’s   statements
regarding the “pop-up” incident do not precisely coincide, and while a
malicious code may permeate a computer,  we  are  not  persuaded  this
incident created all the files saved to  various  locations.   In  the
final analysis, the applicant has not convinced us we should  overturn
the judgments of command officers absent a strong showing of abuse  of
discretionary authority.  We have no such showing  here.   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.  After  considering  the
matters raised by the  applicant,  the  commander  determined  he  had
committed  “one  or  more  of  the  offenses  alleged”   and   imposed
punishment.  As we have not found the nonjudicial punishment improper,
and the referral EPR was driven by the Article  15,  we  conclude  the
applicant’s requests pertaining to these documents and his  grade  and
DOR should be denied.  However, we also conclude the  Article  15  and
the referral EPR were sufficient punishment for  the  offense.   Given
the applicant’s otherwise stellar performance, we believe he should be
afforded the opportunity to continue his career and
attain sufficient years of service for retirement.  In this regard, we
believe  his  reenlistment  ineligibility  should  be  waived  as   an
exception to policy and this we so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the APPLICANT, be corrected to  show  competent  authority
determined he is eligible to reenlist, as an exception to policy,  and
that the Military Personnel Data System  be  amended  to  reflect  his
reenlistment eligibility code is “1M” vice “2J.”

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 21 April 2005 under the  provisions  of  AFI  36-
2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Ms. Renee M. Collier, Member
                 Mr. Alan A. Blomgren, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  BC-
2004-03464 was considered:

   Exhibit A.  DD Form 149, dated 29 Oct 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 3 Feb 05.
   Exhibit D.  Letter, HQ AFPC/DPPP, dated 28 Feb 05.
   Exhibit E.  Letter, SAF/MRBR, dated 4 Mar 05.
   Exhibit F.  Letter, Applicant, dated 26 Mar 05, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair




AFBCMR BC-2004-03464




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to     , be corrected to show competent authority
determined he is eligible to reenlist, as an exception to policy, and
that the Military Personnel Data System be amended to reflect his
reenlistment eligibility code is “1M” vice “2J.”





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency