RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02808
            INDEX CODE:  111.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be compensated for the 24 days of accrued leave he was required  to
take during the appellate review process.

His Enlisted Performance Report (EPR) rendered for the  period  15 Jul
03 through 17 May 04 be declared void and removed from his records.

His records be corrected to reflect that the highest grade he held was
master sergeant (E-7).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully convicted by general court-martial on 5 May 04.   In
Oct 05, the Air Force Court of Criminal Appeals (AFCCA) set aside  the
conviction and he  was  returned  to  active  duty  on  24 Feb 06.   A
rehearing was ordered on 22 Jun 06 and he was found not guilty.   Upon
his release from confinement, he was automatically  put  on  appellate
leave for the balance of his accrued leave.  He was never  compensated
nor was his leave ever restored.   In  May  04,  he  also  received  a
referral EPR which specifically mentioned his erroneous conviction and
confinement.

In support of his appeal, the applicant provides copies of the  Report
of Result of Trial, his Leave and Earnings Statement (LES), and an  AF
Form IMT 988, Leave Request/Authorization.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available military personnel records indicate  that  while
serving in the grade of master sergeant, he was tried by general court-
martial of violating Articles 92  and  134  of  the  Uniform  Code  of
Military Justice  (UCMJ).   Specifically,  he  was  charged  with  one
specification of violating  a  lawful  general  regulation  on  divers
occasions between 1 May 01 and 1 May  02,  by  wrongfully  storing  or
displaying sexually explicit images on a government computer;  and  he
was charged with three  specifications  of  wrongfully  and  knowingly
possessing visual depictions of a minor engaging in sexually  explicit
conduct.  He pled guilty to the charge and  specification  alleging  a
violation of a lawful general regulation, and to one specification  of
wrongfully and knowingly  possessing  visual  depictions  of  a  minor
engaging in sexually explicit conduct on divers  occasions  between  1
May 00 and 19 Sep 02.   The  government  withdrew  the  remaining  two
specifications after arraignment.

On 5 May 04,  he  was  sentenced  to  a  bad  conduct  discharge  BCD,
24 months confinement, and reduction from the grade of master sergeant
(E-7) to the grade of airman basic (E-1).

During the appellate review, the  AFCCA  affirmed  the  conviction  of
violating  a  lawful  general  regulation  by  wrongfully  storing  or
displaying  sexually  explicit  images  on  a   government   computer.
However, AFCCA found his plea of guilty to  wrongfully  and  knowingly
possessing visual depictions of a minor engaging in sexually  explicit
conduct was improvident as a result  of  his  inconsistent  statements
during the guilty plea inquiry.  Consequently,  AFCCA  set  aside  the
conviction and sentence relating to this charge, and remanded the case
to the Judge Advocate General for further proceedings.  A rehearing on
the charge and the sentence was held on 23 Jun 06, and  the  applicant
was acquitted.  Because he remained convicted of  violating  a  lawful
general order by wrongfully storing or  displaying  sexually  explicit
images on a government computer, he was sentenced upon rehearing to  a
reduction to the grade of technical  sergeant  (E-6),  forfeitures  of
$500.00 pay per month for two months,  and  three  months  hard  labor
without confinement.


Applicant’s EPR profile since 1994 follows:

      PERIOD ENDING    EVALUATION

      27 May 94        5
      31 Mar 95        5
      12 Feb 96        5
      12 Feb 97        5
      12 Feb 98        5
      12 Feb 99        5
      12 Feb 00        5
      12 Feb 01        5
      12 Feb 02        5
      14 Jul 03        4
  *   17 May 04        3 (Referral)

* Contested Report.

By letter, dated 21 Dec 06, AFPC/DPPAOR advised the applicant that his
request regarding his pay  date  had  been  resolved  administratively
(Exhibit E).

On 30 Apr 07, he was relieved from active duty and retired,  effective
1 May 07, in the grade of technical sergeant (TSgt).  He was  credited
with 20 years, 11 months, and 3 days of total active service.

On 4 Dec 07, under the authority delegated by the Secretary of the Air
Force, the Secretary of the Air  Force  Personnel  Council  (SAF/MRBP)
found the applicant did not serve satisfactorily in any  higher  grade
and would not be advanced under the provisions of Section 8964,  Title
10, United States Code.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSO  recommends  approval  of  the   applicant’s   request   for
restoration of  leave,  in  the  amount  of  24  days.   According  to
AFPC/DPSO, the applicant was charged 24 days of leave at  the  end  of
Fiscal Year 2005 (FY05).

AFPC/DPSO indicates that in accordance with the governing instruction,
members do not get credit for accrued leave  for  which  they  elected
payment before departing on appellate-review leave.  In this case, the
applicant's initial trial was 5 May 04 when he was  convicted  of  the
offense.  The retrial was 23 Jun 06 and the case was set-aside and the
applicant was returned to duty.  Based on the data  available  in  the
Master Military Pay Account  (MMPA)  system,  the  applicant  did  not
receive payment for the 24 days of leave; the days were  automatically
taken out due to his appellate review status.

A complete copy of the AFPC/DPSO evaluation is at Exhibit C.

AFPC/DPPPEP indicates that after review of the referral  report,  they
are advising the Board to remove the comment "During this period, MSgt
P--- was  given  24 months  hard  labor,  a  reduction  in  grade  for
reviewing child pornography." from the report.  However, they  do  not
recommend voiding the report.  The report was also  referred  for  his
failure to show for work and should be documented in  the  applicant’s
records.   In  addition,  the  report  did  not  mention   the   child
pornography issue anywhere else on the report.  In AFPC/DPPPEP’s view,
removing the comment would  not  invalidate  the  report  or  make  it
inaccurate. In fact, it would make the report accurate  in  accordance
with the governing instruction.

A complete copy of the AFPC/DPPPEP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant  on  5
Jan 07 for review and response within 30 days.  As of  this  date,  no
response has been received by this office (Exhibit F).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLOA/JAJM  recommends  denial  indicating  that   contrary   to   the
applicant’s assertions he was not wrongfully convicted of any  charge.
He voluntarily pled guilty to both charges during the original  trial.
Equally disingenuous are his insinuations that his  entire  conviction
was set aside upon appellate review, when in fact only one of the  two
charges was set aside.  His conviction of the charge and specification
alleging a violation of Article 92, UCMJ, to which he pled guilty, was
affirmed by the appellate court.  Therefore, he  remains  a  convicted
criminal with a valid sentence.  As such, any relief requested on  the
basis of a “wrongful conviction” or that his entire conviction was set
aside is without merit.

A complete copy of the AFLOA/JAJM evaluation, with attachment,  is  at
Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant indicates that he should be compensated for the 24  days  of
accrued leave he was required to take  during  the  appellate  review.
Also, when he retired, his orders indicated the highest grade he  held
was technical sergeant.  This was incorrect because he served  two  of
his final three years in the military in the grade of master sergeant.

Applicant’s complete response, with attachments, is at Exhibit I.

A copy of the Action of the Secretary of the Air Force  was  forwarded
to applicant on 6 Dec 07 for review and response within 30  days.   As
of this date, no response has been received by  this  office  (Exhibit
J).

_________________________________________________________________

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 regarding the applicant’s EPR  closing
17 May 04.  After a careful review, we  are  persuaded  the  contested
report contains inappropriate  comments.   Therefore,  we  agree  with
AFPC/DPPPEP that it should be  amended  by  deleting  those  comments.
However,  evidence  has  not  been  presented  which  shows   to   our
satisfaction the EPR was an inaccurate assessment of  the  applicant’s
performance at the time it was rendered.  Thus, we are not inclined to
void the entire EPR as requested by the applicant.    Accordingly,  we
recommend the applicant’s records be corrected  as  set  forth  below,
which we believe is the proper and fitting relief.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice concerning the applicant’s request
that he be compensated for 24 days of accrued leave, and  his  records
be corrected to reflect the highest grade he held was master sergeant.


      a.  The evidence of record indicates the applicant was convicted
by general court-martial of one specification of  violating  a  lawful
general  regulation  by  wrongfully  storing  or  displaying  sexually
explicit images on a government computer,  and  one  specification  of
wrongfully and knowingly  possessing  visual  depictions  of  a  minor
engaging in sexually explicit conduct.  He was sentenced to a BCD,  24
months confinement, and a reduction from the grade of master  sergeant
to airman basic.  Upon the completion of the sentence to  confinement,
he was required to take leave  pending  completion  of  the  appellate
review  of  his  conviction.   The  applicant  contends  his  wrongful
conviction was set aside by the AFCCA; therefore, he should have  been
compensated for the 24 days of accrued leave he was required  to  take
while in an  appellate  review  status.   However,  a  review  of  the
available evidence reveals that only his conviction of wrongfully  and
knowingly possessing visual depictions of a minor engaging in sexually
explicit  conduct  was  set  aside,  as  was  the  original  sentence.
Although the applicant was required to take  appellate  leave  pending
completion of the  appellate  review,  he  first  used  the  remaining
balance of his accrued leave, for which he  received  normal  pay  and
allowances.  Only after he had used his accrued leave did he  continue
in an unpaid excess leave status.  Further, we have  been  advised  by
the Defense Finance and  Accounting  Service  (DFAS)  that  since  his
sentence of a BCD was set aside, the period of leave charged as excess
leave was credited back to his leave account.

      b.  Regarding  the  applicant’s  request  that  his  records  be
corrected to reflect the highest grade he held was master sergeant, we
note the Secretary of  the  Air  Force  Personnel  Council  under  its
delegated authority found he  did  not  serve  satisfactorily  in  any
higher grade than technical sergeant.

In view of the above, and in the absence of sufficient evidence to the
contrary, we  find  no  compelling  basis  to  act  favorably  on  the
applicant’s requests.

5.  We note the applicant’s request for a change to his pay  date  has
been resolved administratively.  Accordingly,  no  further  action  by
this Board is necessary.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that the  Senior  Enlisted
Performance Report, AF IMT 911, rendered for  the  period  15  Jul  03
through 17 May 04, be amended  in  Section  V,  Rater’s  Comments,  by
deleting the words “During this period MSgt P--- was  given  24  month
hard labor, a reduction in grade for reviewing child pornography.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2006-02808 in Executive Session on 17 Jan 08, under the provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. Anthony P. Reardon, Member
      Ms. Janet I. Hassan, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Sep 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSO, dated 2 Nov 06.
     Exhibit D.  Letter, AFPC/DPPPEP, dated 16 Nov 06.
     Exhibit E.  Letter, AFPC/DPPAOR, dated 21 Dec 06, w/atch.
     Exhibit F.  Letter, SAF/MRBR, dated 5 Jan 07.
     Exhibit G.  Letter, AFLOA/JAJM, dated 16 May 07, w/atch.
     Exhibit H.  Letter, AFBCMR, dated 7 Jun 07.
     Exhibit I.  Letter, applicant, dated 24 Jun 07, w/atchs.
     Exhibit J.  Letter, AFBCMR, dated 6 Dec 07, w/atch.



                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2006-02808




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 that the Senior Enlisted
Performance Report, AF IMT 911, rendered for the period 15 Jul 03
through 17 May 04, be, and hereby is, amended in Section V, Rater’s
Comments, by deleting the words “During this period MSgt Piermattei
was given 24 month hard labor, a reduction in grade for reviewing
child pornography.”







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency