RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01288 

 COUNSEL: NONE 

 

 HEARING DESIRED: NOT INDICATED 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded. 

 

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APPLICANT CONTENDS THAT: 

 

Other than the incident that led to his BCD, his record was 
impeccable and since his return to civilian life, he has not been 
in any trouble. 

 

In support of his appeal, the applicant provides a personal 
statement and a copy of his DD Form 214, Certificate of Release 
or Discharge from Active Duty. 

 

A copy of the applicant’s complete submission, with attachments, 
is at Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the Regular Air Force who 
served as a Fuels Apprentice and was progressively promoted to 
the grade of airman first class (E-3). 

 

On 1 February 2005, the applicant was tried by a special court-
martial for knowingly and wrongfully possessing 17 images of 
child pornography, in violation of Article 134, Uniform Code of 
Military Justice (UCMJ). The applicant pled not guilty to the 
charge. He waived his right to present his case to a panel of 
military members and instead elected to be tried by the military 
judge alone. After he was given an opportunity to confront the 
witness and rebut the evidence against him, he was found guilty 
of the offense. The military judge sentenced the applicant to a 
BCD, confinement for eight months, and a reduction in grade to 
airman basic (E-1). On 20 March 2005, the convening authority 
approved the findings and sentence as adjudged. The Air Force 
Court of Criminal Appeals affirmed the findings and sentence on 
15 May 2006. The applicant petitioned the United States Court of 
Appeals for the Armed Forces for review of his conviction, but 
was denied on 20 September 2006, making the findings and sentence 


in his case final and conclusive under the UCMJ. As a result, 
the applicant’s discharge was ordered to be executed on 
18 October 2006. 

 

The applicant was discharged effective 24 October 2006 with a BCD 
a separation code of “JJD” (Court-Martial), and a RE code of “2M” 
(serving sentence or suspended court-martial sentence; or 
separated while serving or suspended court-martial sentence). He 
spent 2 years, 6 months, and 28 days on active duty with lost 
time from 1 February 2005 through 19 August 2005. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI), Clarksburg, WV, provided a copy of an 
Investigation Report (Exhibit C). 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states that upgrading the 
applicant’s BCD is not appropriate. JAJM indicates that while 
the applicant maintains the child pornography images were 
downloaded by another squadron member, he does accept the fact 
that he is responsible for what was on his computer. However, he 
states he has “more than paid the price for being naïve.” 

 

JAJM indicates that under Title 10, United States Code (USC), 
Section 1552(f), which amended the basic corrections board 
legislation, the Air Force Board for Correction of Military 
Record’s (AFBCMR) ability to correct records related to courts-
martial, is limited. Specifically, Section 1552(f)(1) permits 
the correction of a record to reflect actions taken by reviewing 
authorities under the UCMJ. Additionally, Section 1552(f)(2) 
permits the correction of records related to action on the 
sentence of courts-martial for the purpose of clemency. Apart 
from these two limited exceptions, the effect of Section 1552(f) 
is that the AFBCMR is without authority to reverse, set-aside, or 
otherwise expunge a court-martial conviction that occurred on or 
after 5 May 1950 (the effective date of the UCMJ). 

 

JAJM states the record shows the applicant was afforded all of 
the procedural rights offered by the court-martial and appellate 
process. The applicant pled not guilty to the offense and was 
able to have an impartial military judge decide whether the 
evidence showed, beyond a reasonable doubt, that the applicant 
had committed the offense. The judge heard testimony from 
numerous witnesses, including an agent from the Air Force Office 
of Special Investigations who testified the applicant admitted to 
downloading pornographic images of “preteens.” The applicant 
waived his right to testify or present evidence on his behalf. 
After evaluating the evidence, the judge found the applicant 
guilty of knowingly and wrongfully possessing child pornography. 
The applicant had the chance to present a request for clemency to 
the convening authority before final action on the case. Since 


he received a punitive discharge, his case was automatically 
referred to the Air Force Court of Criminal Appeals. After the 
Air Force Court of Criminal Appeals affirmed the finding and 
sentence, the applicant petitioned the United States Court of 
Appeals for the Armed Forces. There is no evidence of error or 
injustice in the process of his court-martial or appeal. 

 

It is JAJM’s opinion that while clemency may be granted under 
Title 10 USC Section 1552 (f) (2), clemency is not warranted in 
this case. His sentence to a BCD, confinement for eight months, 
and reduction in grade to airman basic was well within the legal 
limits and was an appropriate punishment for the offenses 
committed. Additionally, clemency in this case would be unfair 
to those individuals who honorably served their country while in 
uniform. Congress’ intent in setting up the Veterans’ Benefits 
Program was to express thanks for veterans’ personal sacrifices, 
separations from family, facing hostile enemy action, and 
suffering financial hardships. All rights of a veteran under the 
laws administered by the Secretary of Veterans Affairs are barred 
where the veteran was discharged or dismissed by reason of the 
sentence of a general court-martial. It would be offensive to 
all those who served honorably to extend the same benefits to 
someone who committed crimes such as the applicant’s while on 
active duty. 

 

The complete JAJM evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

On 15 June 2010, the applicant was given an opportunity to submit 
comments about his post service activities and the FBI Report 
(Exhibit F). As of this date, this office has received no 
response. 

 

_________________________________________________________________ 

 

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 an error or an injustice. We are 
not persuaded by the evidence presented that the separation 
characterization received by the applicant should be changed. 
The applicant's discharge was based on his trial and conviction 
by a special court-martial. While the law precludes us from 
reversing a court-martial conviction, we are authorized to 
correct the records to reflect actions taken by reviewing 


officials and to take action on the sentence of a military court 
based on clemency. However, there is nothing in the available 
record that would cause us to disturb the actions of the 
reviewing officials in this case. Therefore, the applicant’s 
request 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-2010-01288 in Executive Session on 18 November 2010, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2010-01288 was considered: 

 

 Exhibit A. DD Form 149, dated 17 Mar 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report. 

 Exhibit D. Letter, AFLOA/JAJM, dated 19 May 10. 

 Exhibit E. Letter, SAF/MRBR, dated 4 Jun 10. 

 Exhibit F. Letter, AFBCMR, dated 15 Jul 10, w/atchs. 

 

 

 

 

 

 Panel Chair