RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04036 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. The non-judicial punishment (NJP), dated 15 Jul 11, 
administered under Article 15 of the Uniform Code of Military 
Justice (UCMJ), be declared void and removed from his records. 

 

2. He be retired in the grade of technical sergeant (E-6). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The punishment he received under NJP is unjust. He worked in 
the Information Assurance (IA) career field for over nine years 
and was aware of dozens of classified incidents and none were 
resolved through NJP. Most often the individuals involved with 
the classified incident were either required to take some IA 
refresher training or no action whatsoever was taken. 

 

There was no thorough investigation completed IAW AFI 31-401, Information Security Program Management, paragraph 9.1.1. to 
determine a compromise of classified information occurred. 

 

He was found to be derelict in the performance of his duties by willfully failing to properly handle classified information; 
however, he was actually unaware there was any classified 
information on his computer. 

 

In support of his appeal, the applicant provides an expanded 
statement and copies of statements from two associates, a 
Defense Computer Forensic Laboratory Report, his statement to 
his commander concerning his Article 15, and several personal e-
mails. 

 

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

 

________________________________________________________________ 

 

 

 

 


STATEMENT OF FACTS: 

 

On 10 Jan 05, the applicant, then a technical sergeant, was 
arraigned on multiple offenses at a court-martial, during which 
he was found guilty of: 

 

 1. In the United Kingdom, on divers occasions, between on 
or about 1 Mar 00 and on or about 1 Aug 02, he wrongfully 
committed indecent acts with various unknown women by 
photographing and videotaping various sexual acts between 
himself and the said various women. 

 

 2. At or near Colorado Springs, Colorado, on divers 
occasions, between on or about 12 Aug 02 and on or about 1 Sep 
03, he wrongfully committed indecent acts with various unknown 
women by photographing and videotaping various sexual acts 
between himself and the said various women. 

 

 3. At or near Colorado Springs, Colorado, on divers 
occasions, between on or about 12 Aug 02 and on or about 
26 Jul 04, he violated a lawful general order by wrongfully 
seeking and beginning off-duty employment without submitting an 
AF Form 3902. 

 

He was sentenced to a reduction in grade to E-5 (staff 
sergeant), forfeiture of $200.00 pay per month for ten months, 
and to perform hard labor without confinement for three months. 

 

On 12 Jul 11, while again a technical sergeant, the applicant’s 
commander offered him NJP under Article 15 of the UCMJ for 
willfully failing to properly handle classified information by 
storing a classified briefing marked “NATO SECRET REL ISAF” on 
his personal computer. 

 

On 15 Jul 11, the applicant acknowledged that he had consulted a 
lawyer, waived his right to a court-martial, and accepted NJP. 
He submitted a written presentation to his commander and 
requested a personal appearance. The commander determined he 
had, in fact, committed the alleged offense. The case was 
determined to be legally sufficient and the Commander imposed a 
punishment consisting of a reduction to the grade of staff 
sergeant and a reprimand. The applicant chose not to appeal. 

 

On 24 Aug 11, the Secretary of the Air Force Personnel Counsel 
determined that the applicant did not serve satisfactorily in 
any higher grade and would not be advanced on the retired list 
beyond the rank of staff sergeant, under the provisions of 
Section 8964, 10 U.S.C. 

 

On 1 Sep 11, after serving for 20 years, 11 months, and 19 days, 
the applicant voluntary retired for length of service. 

 

________________________________________________________________ 

 

 


AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
error or injustice. The applicant argues that because he was 
the subject of a lengthy civilian and military criminal 
investigation for spearheading a prostitution and pandering 
ring, which subjected his personal laptop to search and seizure, 
and ultimately resulted in no criminal charges against him, he 
is being maliciously and unfairly punished for merely having a 
Power Point presentation with a classified slide on his personal 
laptop, which was the only evidence against him. He argues that 
this is a minor mistake and other violators of similar breaches 
of classified information have been dealt with far less 
severely. However, a review of the available documentation 
indicates that the applicant’s rights were observed throughout 
the NJP process. The commander, at the time of the Article 15, 
had the best opportunity to evaluate the evidence in the case. 
With that perspective, the commander exercised the discretion 
that the applicant granted him when he accepted the Article 15 
and found NJP proceedings appropriate in his case. The exercise 
of that discretion should generally not be reversed or otherwise 
changed on appeal or by the Board absent good cause. Moreover, 
the applicant was afforded the opportunity to have his 
commander’s decision scrutinized on appeal and elected not to do 
so. The legal review process showed that the commander did not 
act arbitrarily or capriciously in making his decision. The 
commander’s ultimate decision on the Article 15 action is firmly 
based on the evidence of the case and the punishment decision 
was well within the limits of the commander’s authority and 
discretion. The applicant has not shown a clear error or 
injustice. 

 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOE defers to AFLOA/JAJM’s recommendation of denial. 
Should the Board grant the applicant’s request, they could 
direct restoration to the rank of technical sergeant with a Date 
of Rank of 1 Jul 08. 

 

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

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant submits an expanded statement reiterating each of 
the points made in his initial submittal. He also takes 
exception to many of the arguments presented in the AFLOA/JAJM 
advisory, pointing out what he contends are errors or 
inconsistencies in the advisory. Thus, he asserts he has 
demonstrated both error and injustice. He argues that 
punishment should be equitable based on the facts presented, 
extenuating circumstances, and previous punishments for similar 
offenses. He believes he provided more than sufficient evidence 
that his punishment was not only for the alleged offense but 


unjustly for other offenses that were investigated and found to 
be baseless (Exhibit E). 

 

________________________________________________________________ 

 

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 an error or injustice. We took 
notice of the applicant’s complete submission, including his 
response to the advisory opinions rendered in this case, in 
judging the merits of the case; however, we agree with the 
opinion and recommendation of AFLOA/JAJM and adopt its rationale 
as the basis for our conclusion the applicant has not been the 
victim of an error of injustice. We note that the commander 
exercised the discretion that the applicant granted him when he 
accepted the Article 15 and found nonjudicial punishment 
appropriate in his case, the punishment decision was well within 
the limits of the commander’s authority and discretion, and the 
applicant was afforded the opportunity to have his commander’s 
decision scrutinized on appeal and elected not to do so. 
Therefore, in the absence of evidence the commander abused his 
discretionary authority, appropriate standards were not applied, 
or the applicant was denied rights to which he was entitled to, 
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-2011-04036 in Executive Session on 3 May 12, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-04036 was considered: 

 

 Exhibit A. DD Form 149, dated 7 Oct 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 16 Dec 11. 

 Exhibit D. Letter, AFPC/DPSOE, dated 13 Jan 12. 

 Exhibit E. Letter, Applicant, dated 17 Feb 12 w/atch. 

 

 

 

 

 

 Panel Chair