AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 

 
 

 
 

 

 

 
 

DOCKET NUMBER:  BC-2012-01895 
COUNSEL: NONE 
HEARING DESIRED:  NO 

IN THE MATTER OF: 
     
 
_________________________________________________________________ 
 
APPLICANT REQUESTS THAT:  
 
His  bad  conduct  discharge  (BCD)  be  upgraded  to  an  honorable 
discharge.   
 
_________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
His characterization of discharge should be upgraded based on the 
decision  by  the  United  States  Court  of  Appeals  for  the  Armed 
Forces in U.S. versus .   
 
A copy of the applicant’s complete submission, with attachments, 
is at Exhibit A. 
 
_________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On 6 April 2009, the applicant, then an airman first class (E-2), 
was  tried  and  convicted  by  general  court-martial  for  one 
specification  of  wrongfully  possessing  child  pornography  in 
violation  of  Article  134,  Uniform  Code  of  Military  Justice 
(UCMJ).    The  applicant  pled  guilty  to  the  charge  and 
specification  and  sentenced  to  a  BCD,  confinement  for  60  days, 
and  reduction  to  the  grade  of  airman  basic  (E-1).    On  22  May 
2009, the convening authority approved the sentence as adjudged.  
On  19  January  2010,  the  Air  Force  Court  of  Criminal  Appeals 
remanded the record of trial back to the Judge Advocate General 
to  correct  an  error  in  the  convening  authority’s  action.    On 
29 January 2010, the Air Force Court of Criminal Appeals approved 
the sentence as adjudged.  On 4 October 2010, the United States 
Court  of  Appeals  for  the  Armed  Forces  denied  the  applicant’s 
petition  for  review  of  the  decision  of  the  Air  Force  Court  of 
Criminal  Appeals,  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  3  November 
2010.   
 
The applicant was discharged effective 12 August 2011 with a BCD 
and a narrative reason for separation of “Court-Martial (Other).”  
He served four years, seven months, and five days on active duty 
with lost time from 6 April 2009 through 23 May 2009.   
 

_________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM recommends denial.  JAJM states the applicant asserts 
that during the court-martial hearing his military defense argued 
to the military judge that the maximum punishment for the offense 
did  not  include  a  punitive  discharge.    Counsel  argued  that 
because  the  specification,  as  drafted,  failed  to  correctly 
assimilate  the  federal  statute  criminalizing  the  possession  of 
child pornography, the maximum punishment under the statute was 
not available.  The specification used the language “what appears 
to be a minor,” which was the language removed from the federal 
statute  based  on  the  United  States  Supreme  Court  decision  in 
Ashcroft.    The  military  judge  disagreed  and  determined  the 
maximum  punishment  was  a  dishonorable  discharge,  ten  years 
confinement, and a reduction in grade to E-1.   
 
One  month  after  the  applicant’s  trial,  another  general  court-
martial  was  completed  for  the  exact  same  offense.    The  accused 
was sentenced to a BCD, ten months confinement, and a reduction 
to E-1.  That case was also affirmed by the Air Force Court of 
Criminal Appeals and was also granted review by the United States 
Court  of  Appeals  for  the  Armed  Forces.    On  2  April  2011,  six 
months  after  the  applicant’s  case  was  final,  by  application  of 
Article 76, UCMJ and Rule for Court-Martial (RCM) 1209(a)(1)(B), 
the  United  States  Court  of  Appeals  for  the  Armed  Forces  ruled 
that it was an error for the trial court judge to reference the 
maximum  punishment  in  the  federal  statute  and  that  the  maximum 
punishment 
child 
pornography, using the language “what appears to be a minor,” is 
actually  no  more  than  four  months  confinement  and  does  not 
include  a  punitive  discharge.    Because  the  accused  had  already 
served  the  period  of  ten  months  confinement,  the  convening 
authority  in  the  case  approved  “no  punishment”  and  Airman  was 
separated from active duty with an honorable discharge.  He was 
not  eligible  for  an  administrative  discharge  providing  a 
different  service  characterization,  because  his  term  of 
enlistment had already expired.   
 
JAJMJ indicates that had the charges against the applicant been 
brought six months later, he would likely not have been subject 
to a punitive discharge based on the court’s ruling in.  While 
this argument may be true, it is irrelevant as these are not the 
facts  of  the  applicant’s  case.    Finally,  it  must  be  emphasized 
that the applicant does not dispute that he committed the crime 
of wrongfully possessing child pornography and was convicted and 
sentenced under the law as it existed at the time of trial.   
 
Article  76,  UCMJ  (finality  of  proceedings,  findings,  and 
sentence),  states  that  appellate  review  of  records  of  trial 
provided by the UCMJ, the proceedings, findings, and sentences of 
courts-martial as approved, reviewed, or affirmed as required by 
the  UCMJ,  and  all  dismissals  and  discharges  carried  into 

specification  of 

possessing 

for 

that 

 

 
2 

execution  under  sentences  by  courts-martial  following  approval, 
review,  or  affirmation,  as  required  by  the  UCMJ,  are  final  and 
conclusive.  Orders publishing the proceedings of courts-martial 
and  all  action  taken  pursuant  to  those  proceedings  are  binding 
upon  all  departments,  courts,  agencies,  and  officers  of  the 
United  States,  only  subject  to  action  upon  petition  for  a  new 
trial  as  provided  in  Article  73,  UCMJ,  and  to  action  by  the 
Secretary  concerned  as  provided  in  Article  74,  UCMJ,  and  the 
authority of the President.   
 
RCM 1209(a)(1)(B) states that a court-martial conviction is final 
when  review  is  completed  by  a  Court  of  Criminal  Appeals  and  a 
petition for review is denied or otherwise rejected by the Court 
of  Appeals  for  the  Armed  Forces.    In  the  applicant’s  case  the 
petition for review was denied; therefore, making his case final 
on  4  October  2010.    The  result  in  the  applicant’s  case  was 
determined correct under the law on that day.   
 
JAJM  states  the  applicant’s  conviction  and  sentence  remain  the 
legal  and  correct  result  in  his  case.    The  conviction  and 
sentence,  which  includes  the  BCD,  is  a  legal  sentence,  despite 
the  decision  in  the  unrelated,  later  case  of;  a  decision  which 
has no legal effect on the applicant’s case.  There is no legal 
basis  with  which  to  upgrade  his  punitive  discharge.    The  fact 
that  another  individual,  in  another  case,  received  a  different 
result is of no consequence to the legal and just results in the 
applicant’s case.   
 
The complete JAJM evaluation is at Exhibit C. 
 
_________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
A copy of the Air Force evaluation was forwarded to the applicant 
on 27 June 2012, for review and comment within 30 days (Exhibit 
D).  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 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  in  judging  the 
merits  of  the  case;  however,  we  agree  with  the  opinion  and 
recommendation of the Air Force office of primary responsibility 
and adopt its rationale as the basis for our conclusion that the 

 

 
3 

applicant  has  not  been  the  victim  of  an  error  or  injustice.  
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-2012-01895  in  Executive  Session  on  12  February  2012, 
under the provisions of AFI 36-2603: 
 

 
The  following  documentary  evidence  pertaining  to  AFBCMR  Docket 
Number BC-2012-01895 was considered: 
 

Exhibit A.  DD Form 149, dated 30 Apr 12, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFLOA/JAJM, dated 12 Jun 12. 
Exhibit D.  Letter, SAF/MRBR, dated 27 Jun 12.  

 
 
 

, Panel Chair 
, Member 
, Member 

 
 
 
 
 
 

 

  
  

 
 

 
 

 
 

 
 

 
 

 
Panel Chair 

 
4