RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01986 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

The Article 15 imposed on him on 19 May 09 be set aside and his 
grade of master sergeant (E-7/MSgt) be reinstated with his 
original Date of Rank (DOR) of 1 May 08. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

The Article 15 should be set aside because the imposed 
punishment was grossly disproportionate to the offense and will 
cause extreme financial hardship when he retires. When viewing 
his situation as a whole, including his honorable and faithful 
service prior to the incident under review and his life since 
this offense, the punishment is excessively harsh. 

 

He believes that when considering his overall outstanding record 
of performance and his record of achievement during his years of 
service, including his participation in several deployments, 
that the reprimand and forfeiture of pay was much more 
appropriate as compared to the impact of a reduction in rank. 

 

While he accepts responsibility for his actions, he does not 
believe his offense (storing sexually explicit photographs on 
unit-shared drive) constitutes “sexually explicit materials,” as 
established by law. 

 

In addition, the applicant cites several BCMR cases where he 
believes the Article 15 punishment was excessive and the Board 
granted relief; BC-2000-03277 and BC-2005-02266. 

 

In support of his appeal, the applicant provides a personal 
statement; a copy of letters of character reference, and a 
computer disc, with the pictures that were stored on the shared 
drive. 

 

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

 

________________________________________________________________ 

 


 

 

STATEMENT OF FACTS: 

 

Based on the available evidence, the applicant, while serving as 
a master sergeant, was offered non-judicial punishment (NJP). 
He was charged with violating a lawful general regulation, in 
violation of Article 92, Uniform Code of Military Justice 
(UCMJ). Specifically, he was accused of wrongfully storing 
sexually explicit photographs on his squadron’s network drive, 
in violation of AFI 33-100, USER RESPONSIBILITIES AND GUIDANCE 
FOR INFORMATION SYSTEMS, para 3.9.1.3. His punishment consisted 
of reduction to the grade of technical sergeant (E-6/TSgt), 
forfeiture of $1,684.00 pay per month for two months (suspended 
for six months), and a reprimand. The applicant appealed; 
however, his appeal was denied. A legal review of the Article 
15 action at two levels of command determined it was legally 
sufficient. 

 

The applicant’s new DOR was established in the grade of 
technical sergeant as 19 May 09. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, stating, in part, the applicant 
has not shown a clear error or injustice sufficient to warrant a 
set aside of the NJP action. 

 

In this case, the applicant has not met his burden in showing 
that his commander, the appellate authority, or the attorneys 
who reviewed his Article 15 acted arbitrarily or capriciously in 
determining that the applicant violated AFI 33-100. 
Importantly, in his written response to the Article 15, the 
applicant admitted the following: "Regardless of whether I knew 
those photos were sexually explicit, I understand I violated AFI 
33-100 by inappropriately using a government computer and 
storing non-work related material and potentially inappropriate 
and offensive material." To now claim that his Article 15 should 
be set aside because he did not violate AFI 33-100 is 
disingenuous. The applicant's main contention is that the 
images found on his computer were not "sexually explicit." 
Because AFI 33-100 does not define "sexually explicit 
materials;" however, the applicant cites several federal 
statutes and court cases, which have attempted to do so. None 
of the definitions cited by the applicant binds a commander 
wishing to impose nonjudicial punishment for a suspected 
violation of AFI 33-1OO-including Title 10 United States Code 
(USC), Section 2495b, which the applicant cites as authority for 
a definition of "sexually explicit materials." As defined by 
Title 10 USC Section 2495b, which prohibits the sale or rental 
of sexually explicit materials on property under the 
jurisdiction of the Department of Defense (DoD)-"sexually 


explicit material means an audio recording, a film or video 
recording, or a periodical with visual depictions, produced in 
any medium, the dominant theme of which depicts or describes 
nudity, including sexual or excretory activities or organs, in a 
lascivious way." The applicant argues that because the images 
stored on his computer "did not contain any adult nudity though 
displaying a fully exposed breast with nipple or any nude adults 
with exposed genitals," the images do not meet the definition of 
"sexually explicit material" under 10 USC Section 2495b. 

 

Contrary to the applicant's contentions, the images found on his 
government computer reasonably could be considered sexually 
explicit materials. While these images (and dozens like them) 
admittedly do not depict fully exposed breasts or genitals and 
therefore likely would not be considered pornographic, a 
commander reasonably could determine that the images found on 
the applicant's government computer were sexually explicit and 
therefore a violation of AFI33-100. The applicant also fails to 
meet his burden in showing that the punishment imposed was 
unjust. While the impact of a reduction in rank from master 
sergeant to technical sergeant should not be minimized, the 
applicant's commander reasonably determined the reduction was 
appropriate and necessary. In the applicant's written response 
and again in his appeal, he detailed the financial difficulties 
he and his family would suffer because of the punishment. The 
commander and the appellate authority considered this 
information including a breakdown of the applicant's pre- and 
post-punishment finances-and determined the applicant's actions 
warranted a reduction in rank and suspended forfeitures. To 
overturn the applicant's punishment now would require the Board 
to substitute its judgment for that rendered by the individuals 
who had the opportunity to review all of the available facts 
including the images themselves. Such a result does not meet 
the intent of the nonjudicial punishment set aside provision in 
the UCMJ and would not be in the best interests of the Air 
Force. 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOE defers their recommendation to the recommendation of 
AFLOA/JAJM regarding removal of the Article 15. They note, the 
applicant has not alleged an error or injustice in the 
processing of the Article 15; he simply feels that the 
punishment was too harsh or unjust. Not only does the 
applicant’s DOR render him eligible for promotion consideration 
to SMSgt, cycle 10E8, but, the fact that he received a referral 
enlisted performance report (EPR) with a close date of 4 Sep 09 
also rendered him ineligible for this cycle, in accordance with 
(IAW) the governing instructions and policies. 

The complete AFPC/DPSOE evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 


 

The applicant’s counsel notes that the AFLOA/JAJM advisory 
indicates that the main contention is that the images found on 
his computer were not sexually explicit; however, it is clear 
that the applicant’s main contention is that the punishment 
imposed under Article 15 is grossly disproportionate to the 
offense. The contention that the images were not sexually 
explicit is a secondary argument to his main injustice argument. 
The JAJM advisory misplaced focus on the nature of the images 
detracts from the overall injustice in imposing such a grossly 
disproportionate punishment to such a minor offense. Further, 
they note, despite the applicant’s exemplary career and the 
relatively minor offense, the applicant’s commander nevertheless 
recommended a reduction in grade and that the recommendation is 
not “temperate, just [or] conducive to good order and 
discipline.” The NJP is the first and only disciplinary 
infraction in the applicant’s 21 years of service. Considering 
the relatively minor nature of the offense, it is grossly 
disproportionate to impose the maximum punishment allowed. They 
note IAW the Manual for Court Martial, Part V; commanders should 
consider suspending all or part of any punishment selected under 
Article 15. In particular, in the case of first offenders or 
when significant extenuating or mitigating matters are present 
and in this case, he should have, at least, at a minimum, 
suspended the reduction in grade for a period of six months. 
While the commander suspended a portion of the applicant’s 
punishment, suspension of the reduction in grade would have been 
more appropriate. 

 

In support of his response, the applicant’s counsel provides 
copies of his EPRs and awarded decorations. 

 

The applicant’s counsel 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. 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. We note counsel’s arguments that the focus of the 
JAJM evaluation appears to be misplaced by focusing the emphasis 
on whether the images found on the applicant’s computer were 
sexually explicit rather than on the severity of the punishment 
the applicant received. We also note counsel’s argument that 
this Board has found punishment administered under Article 15 to 
be overly harsh in other cases it has considered. However, in 


reviewing the cases submitted for review, we do not find the 
circumstances so similar to those of the applicant’s case that 
we are persuaded similar action is demanded in seeking 
consistency in the Board’s actions. We thoroughly reviewed the 
character references submitted in support of the applicant’s 
appeal. They all attest to the applicant’s exemplary service 
and performance; but we note none of the statements appear to be 
from anyone within the applicant’s chain of command during the 
time of his offense. While we concede the punishment imposed 
was harsh, we are not persuaded by the applicant’s arguments or 
the evidence of record that it was inappropriate to the offense 
and should be disturbed. The applicant did appeal the 
punishment, meaning the punishment imposed was reviewed by a 
senior level commander with the authority to change it if he 
found it to be excessive or improper. He did not. In view of 
the above and in the absence of evidence to the contrary, we 
find no basis to recommend granting the relief sought in this 
application. 

 

________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2010-01986 in Executive Session on 26 May 2011, under 
the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 7 Jun 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 1 Oct 10. 

 Exhibit D. Letter, AFPC/DPSOE, dated 10 Nov 10. 

 Exhibit E. Letter, SAF/MRBR, dated 26 Nov 10. 

 Exhibit F. Letter, Counsel, dated 22 Dec 10. 

 

 

 

 

 Panel Chair