RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01562
      INDEX CODE:  110.00
      COUNSEL:  FRANK J. SPINNER

      HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His general  (under  honorable  conditions)  discharge  be  upgraded  to
honorable.

2.  His separation code of GKQ (Misconduct) be changed.

3.  The word "misconduct" be removed from block 28 of his DD Form 214.

4.  His Article 15 be removed from his record.

________________________________________________________________

APPLICANT CONTENDS THAT:

He did not challenge the determination that pornographic images  were  found
on his Air Force computer; however, he maintains that he did  not  put  them
there, store them, or otherwise view them.  Because  the  Air  Force  denied
his expert's request for access to a copy of the computer's hard  drive,  he
was  denied  the  ability   to   effectively   present   forensic   evidence
corroborating his claim of innocence.

He was honestly  mistaken  when  he  attempted  to  modify  an  Honor  Guard
scheduling record to reflect that he participated as a member  of  an  Honor
Guard detail in a ceremony on the date  that  his  Air  Force  computer  was
purportedly used to access a pornographic website.   When  he  reviewed  the
Honor Guard schedule, openly and in the presence of a  government  employee,
he honestly believed he was correcting an entry in  the  attendance  record.
Regardless of his actions changing the record, at no  time  did  he  present
this modified attendance record as a basis to  objectively  corroborate  his
belief that he could not have accessed a pornographic website  at  the  time
the government alleged.  There is no evidence that an Air  Force  Office  of
Special Investigations (AFOSI) analysis was conducted.

In support of his application, the applicant  submits  counsel's  statement,
excerpt of AFI 51-202, letter to JA, notarized  declaration  and  affidavit,
witness statement, Article 15  notification,  defense  package  and  defense
appeal package,  memorandum  for  commander,  and  administrative  discharge
notification and response.

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

________________________________________________________________

STATEMENT OF FACTS:

On 22 Apr 05, the applicant was relieved from active duty and discharged  in
the grade of second lieutenant.  He was credited with  2  years,  10  months
and 15 days of active duty commissioned service.  His  records  indicate  he
was assigned duties as a developmental engineer.

The applicant's commander notified him of initiation of action under AFI 36-
3206, Administrative Discharge Procedures for Commissioned Offices, for  the
following reasons:

      a.  Between on or about 31 Dec 02 and on  or  about  16  Jan  03,  the
applicant was derelict in the performance of  his  duties  and  subsequently
violated a lawful AFI by failing to safeguard his government  computer  log-
on password as required by AFI 33-202.  For this  incident,  he  received  a
Letter of Admonishment (LOA).


      b.  Between on or about 12 Mar 04 and  on  or  about  26  Mar  04,  he
violated AFI 33-129 by wrongfully storing pornographic images  and  sexually
explicit video files on his  government  computer.   For  this  offense,  he
received Nonjudicial Punishment (Article 15).


      c.  On or about 16 Aug 04,  he  wrongfully  endeavored  to  impede  an
investigation by altering the official record of members  who  performed  an
Honor Guard detail on 26 Mar 04 by adding his name to  the  list  of  detail
members.   This  action  was  considered  to  be  an  attempt   to   deceive
investigators of his whereabouts  on  26  Mar  04.   For  this  offense,  he
received Nonjudicial Punishment.


On or about 10 Nov 04, his commander recommended that he be  considered  Not
Qualified for Promotion (NQP) based upon the incidents and  offenses  listed
above.

The applicant acknowledged receipt of the  notification,  consulted  counsel
and submitted a statement on his own behalf.  On 4  Feb  05,  the  applicant
requested that his Article 15 be set aside.  His request was  denied  on  10
Feb 05.  The Deputy Staff Judge Advocate reviewed the  discharge  case  file
and found it legally sufficient.  On 11 Apr 05, the  Secretary  of  the  Air
Force  directed  the  applicant  be  discharged  with  an  under   honorable
conditions (general) discharge.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibits C and D.

________________________________________________________________

AIR FORCE EVALUATION:

HQ AFLOA/JAJM recommends denial.  JAJM states a  commander's  action  should
only be set aside when  the  evidence  demonstrates  an  error  or  a  clear
injustice.  JAJM opines the applicant has not presented evidence of this  in
the Article 15 process; therefore, no basis exists to  expunge  the  Article
15  action  from  the  applicant's  records  or  to  upgrade  his  discharge
characterization.

The complete JAJM evaluation is at Exhibit C.

HQ  AFPC/DPPRS  recommends  denial.   DPPRS  states  that   based   on   the
documentation on file in  the  applicant’s  master  personnel  records,  the
discharge was consistent with the procedural  and  substantive  requirements
of the discharge regulation and was within the discretion of  the  discharge
authority.  DPPPRS notes the  applicant  did  not  submit  any  evidence  or
identify  any  errors  or  injustices  that  occurred   in   the   discharge
processing.  In addition, he has not provided any facts  warranting  removal
of  the  Nonjudicial  Punishment  and  "misconduct"  narrative  reason   for
separation, or changing his separation code and upgrading his  character  of
service to honorable.

The complete DPPRS evaluation is at Exhibit D

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant  on  3
Aug 07 for review and comment within 30 days.  On 5 Sep  07,  the  applicant
requested additional time in order to respond.  On 7 Sep 07,  the  applicant
was advised that due to time  constraints,  we  were  unable  to  grant  his
request for an extension and his  case  was  being  administratively  closed
until such time as he was ready to proceed.

In a letter dated 2 Jan 08, the applicant's counsel requested  the  case  be
reopened and states, "that they respectfully disagree with  the  memorandums
prepared by the Air Force offices of  primary  responsibility,  particularly
in light of the newly discovered evidence."  Counsel  provides  rebuttal  to
the conclusion and information  contained  in  the  evaluation  prepared  by
AFLOA/JAJM.

Counsel asserts that it logically follows that if  the  Article  15  is  set
aside,  then  the  basis  for  the   applicant's   discharge   and   service
characterization has been  unquestionably  undermined.   Therefore,  counsel
indicates that their rebuttal is  directed  at  "the  meaningful  error  and
clear injustice that  occurred  –  punishing  applicant  under  Article  15,
UCMJ!"

He  declares  the  newly  discovered  evidence  objectively   supports   the
applicant's belief that he did not handle illicit material on  his  computer
at the time alleged because he was dining  at  a  restaurant  some  distance
away.  He alleges if this evidence  had  been  available  at  the  time  the
applicant was preparing his original defense and if applicant's  expert  had
been given a chance to evaluate a copy of the hard  drive  of  the  computer
the  conflicts  in  timing  could  have  been  resolved,   exculpating   the
applicant.

The remaining three-paged response reiterates much  of  the  above-mentioned
contentions and arguments.

The applicant's counsel's complete response, with attachment, 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

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 opinion and recommendation of the  Air  Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  the  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
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 this application in  Executive
Session on 24 January 2008, under the provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2007-01562:

      Exhibit A.  DD Form 149, dated 24 Apr 07, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLOA/JAJM, dated 22 Jun 07.
      Exhibit D.  Letter, HQ AFPC/DPPRS, dated 17 Jul 07.
      Exhibit E.  Letter, SAF/MRBR, dated 3 Aug 07.
      Exhibit F.  Letter, AFBCMR, dated `7 Sep 07.
      Exhibit G.  Letter, Counsel, dated 2 Jan 08, w/atchs.




                                  KATHLEEN F. GRAHAM
                                  Panel Chair