RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00781
            INDEX CODE:  131.09

            COUNSEL:  GUY J. FERRANTE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he  retired  from  the  Air  Force
Reserve in the grade of major, rather than captain.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force committed an error by violating its own regulation,  and
it committed  an  injustice  by  exaggerating  the  realities  of  the
situation and ignoring the  fact  that  it  was  never  determined  he
violated any laws.

In support of his appeal, the applicant provides  a  counsel’s  brief,
documentation from the state of  Pennsylvania  and  pertaining  to  an
Officer Grade Determination (OGD), and supportive statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates that in Nov 02, the  applicant  took
his personal computer  to  a  computer  repair  shop.   While  in  his
possession, the owner of the shop and his brother discovered what they
believed to be child pornography on  his  computer.   The  shop  owner
contacted the state police.  A subsequent  investigation  by  forensic
examiners confirmed the  existence  of  the  child  pornography.   The
applicant was subsequently charged with 20 counts of sexual  abuse  of
children in violation of state law.

On 19 May 03, the Commander, 910th Mission Support Group  (910 MSG/CC)
issued him a letter of reprimand (LOR) for the  misconduct.   The  LOR
was placed in an unfavorable information file (UIF).  In  response  to
the LOR, he admitted to taking his  computer  in  for  repair  and  to
surfing  adult  pornography  websites,  but  denied  possessing  child
pornography.  He asserted that he was never given the  opportunity  to
challenge  the  accusation  of  the  wrongful  possession   of   child
pornography and argued that if he had been given the  opportunity,  he
would have shown that the pictures were of adults.  He  also  asserted
the alleged pictures of children found on his computer could have come
from unsolicited electronic mail (e-mail) he received in the summer of
2002.  He alleged that  after  he  opened  the  e-mail,  it  contained
pictures and materials he did not wish to have in his possession,  and
his attempts to delete the pictures were fruitless.

On 30 Jan 04, without entering any pleas, the applicant was entered in
the Accelerated Rehabilitative Disposition  (ARD)  Program  authorized
under state law.  As a condition of the ARD program, he agreed to  two
years  of  supervised  probation,  sexual  offender   treatment,   and
restriction from any "sex  chat  rooms."   If  he  completed  the  ARD
period, state law called for the dismissal  of  the  charges  and  the
possibility of his records being expunged.

On 10 Feb 04, the 910 MSG/CC notified the applicant of his  intent  to
initiate an OGD prior to the effective date of his retirement.

On 26 Feb 04, he submitted his response to the proposed OGD.  The  910
MSG/CC, Commander, 910th Airlift Wing (910 AW/CC), and the  Commander,
22nd Air Force (22 AF/CC) recommended he be transferred to the Retired
Reserve in the grade of captain, and the proposed OGD was found to  be
legally sufficient.

On 6 Aug  04,  the  Secretary  of  the  Air  Force  Personnel  Council
(SAF/MRBP)  considered  his  OGD  case  and  recommended  that  he  be
transferred to the Retired Reserve in the grade of captain.

On 9 Aug 04, the Secretary of the Air Force found  the  applicant  did
not serve satisfactorily in  the  grade  of  major  (0-4)  within  the
meaning of Section 1370a(1),  Title  10,  United  States  Code  (USC).
However, the Secretary found he did serve satisfactorily in the  grade
of captain (0-3), within the meaning of the above provision of law and
directed that he be retired in that grade.

On 14 Oct 04, Reserve Order EK-0343 was issued placing the applicant’s
name on the Reserve Retired list, effective 30 Sep 04, in the grade of
major.

On  19  Nov  04,  Reserve  Order  EK-0343  was  revoked  due   to   an
administrative error.  On 22 Nov 04, Reserve Order EK-1134 was  issued
in its place, indicating  the  applicant’s  name  was  placed  on  the
Reserve Retired list, effective 9 Aug 04, in the grade of captain).

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/A1B recommends denial indicating the  applicant’s  retirement  in
the grade of captain was in compliance with the governing  instruction
and they found no occurrence of an error or injustice.

A complete copy of the AFRC/A1B evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel indicates the advisory opinion did nothing to  refute  any  of
the  reasons  to  correct  the  applicant’s  record  to  reflect   his
retirement in the grade of major.  He believes it  misrepresented  the
applicant’s position. He never claimed  the  Air  Force  violated  its
regulation by exaggerating anything.  He demonstrated  the  Air  Force
committed an error by violating its own regulation  and  committed  an
injustice by exaggerating the realities of the situation and  ignoring
the fact that he was never determined to have violated any laws.

Counsel states the advisory opinion’s claim the applicant’s retirement
as a captain was in compliance  with  the  governing  instruction  was
unsupported and rang  hollow  for  failing  to  address  the  specific
regulatory violations demonstrated by the applicant.

Counsel believes the advisory opinion’s  comment  that  the  applicant
should not avoid accountability for his actions was  a  distortion  of
reality.  He indicates it has never been  the  applicant’s  burden  to
prove his innocence and there has never been a  determination  of  his
guilt or wrongdoing for which he  should  be  held  accountable.   His
participation  in  the  ARD  program  was  neither  an  admission   of
wrongdoing nor a finding of criminality.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends  denial  indicating  the  910  MSG/CC  met  the
criteria to initiate an OGD.  All levels of review found the  evidence
in the applicant's package compelling enough to conclude  he  did  not
satisfactorily hold the grade of major.  A conviction is not  required
to make such a finding.  Rather, the applicant's focus on the fact his
participation in the ARD program did not constitute a conviction is  a
"red herring."   Similarly,  there  was  no  evidence  the  Air  Force
exaggerated the realities of the  situation,  particularly  given  the
serious implications of possessing child pornography--even if it  were
a one-time, "passive-viewing"  possession.   They  further  noted  the
Secretary of the Air Force had the independent authority to retire the
applicant in the highest grade he satisfactorily held, irrespective of
the action taken.

According to HQ USAF/JAA, the alleged error was neither of  the  type,
nor the severity, mandating the  Board  take  action  to  correct  the
applicant's  retired  grade  from  captain  to  major.   Retiring  the
applicant at a lower grade was clearly not  an  abuse  of  Secretarial
discretion  considering  the  repugnant  and  serious  nature  of  the
conduct.  For essentially the same reasons, they do  not  believe  the
applicant has suffered  an  injustice.   Further,  he  has  failed  to
satisfy his burden of showing that he was the victim of an  injustice.


A complete copy of the HQ USAF/JAA evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion from HQ USAF/JAA and provides  a
detailed response indicating, in summary, that  the  advisory  opinion
did nothing to diminish the applicant’s demonstration that  his  grade
reduction was both erroneous and unjust.

Counsel’s complete response, with attachment, is at Exhibit H.

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.   However,  we  do  not   find   the   applicant’s   assertions
sufficiently persuasive to  override  the  rationale  provided  by  HQ
USAF/JAA.   No  evidence  has  been  presented  which  shows  to   our
satisfaction that the information used as a basis for the  Secretarial
determination of the applicant’s retirement grade  was  erroneous,  or
that there was an abuse of discretionary authority.  In  view  of  the
foregoing, and in the absence of sufficient evidence to the  contrary,
we agree with the  recommendation  of  HQ  USAF/JAA  and  adopt  their
rationale as the basis for our decision that the applicant has  failed
to sustain his burden of establishing he has suffered either an  error
or  an  injustice.   Accordingly,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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 AFBCMR Docket Number BC-
2007-00781 in Executive Session on 12 Feb 08, under the provisions  of
AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 5 Oct 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/A1B, dated 9 Apr 07.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Apr 07.
    Exhibit E.  Letter, counsel, dated 8 May 07.
    Exhibit F.  Letter, HQ USAF/JAA, dated 30 Nov 07.
    Exhibit G.  Letter, AFBCMR, dated 19 Dec 07, w/atchs.
    Exhibit H.  Letter, counsel, dated 25 Jan 08, w/atch.





                                   CHARLENE M. BRADLEY
                                   Panel Chair