RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-04129

  						COUNSEL:  

						HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

His Dishonorable discharge be upgraded to General (Under 
Honorable Conditions).


APPLICANT CONTENDS THAT:

His discharge should be upgraded based on clemency.

He has persevered through very difficult circumstances over the 
past three years and has continued to work towards being a 
productive member of society.

His family who knows him best supports his request for clemency 
and provides statements on his behalf.

His criminal investigation was incomplete and faulty and has led 
to a loss of liberty and rights.

He made four requests for an attorney during his interview with 
the Air Force Office of Special Investigation (AFOSI) 
interviewer and one was not provided one in violation of his 
Article 31 rights.  

His defense team was unprepared to effectively combat his 
investigation and scared him into taking a deal he now regrets.

The evidence against him was flawed and he presents new evidence 
that only reflects that there were images that could have been 
child pornography on his computer.  Also, insufficient data was 
found to prove that a particular “user” downloaded, accessed or 
even knew that questionable files existed on the computer.

The Air Force examiner was also confused on the methods of large 
file transfer and indicates that there is no way to determine 
how much contraband, if any, was on his computer.  There were no 
preview of files done prior to or during the transfer, which 
indicates that the downloading user would not necessarily know 
the contents of the file.

He knows the Board cannot address this miscarriage of justice, 
but ask the Board to acknowledge his character, perseverance and 
integrity by granting his request for clemency.

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


STATEMENT OF FACTS:

On 2 Mar 10, the applicant initially entered the Regular Air 
Force.

In accordance with General Court-Martial (GCM) Order Number 56, 
the applicant was tried and convicted by a general court-martial 
and the military judge sentenced him to a dishonorable 
discharge, with confinement for 24 months, forfeiture of all pay 
and allowances, and reduction in grade to airman basic (E-1).  

On 26 Jul 12, the GCM was affirmed and on 15 May 12 the sentence 
was adjudged by military judge.

On 9 May 14, the applicant was discharged by reason of court-
martial (other), with service characterized as dishonorable.  He 
was credited with 2 years, 2 months, and 13 day of active duty 
service, excluding lost time from 15 May 12 thru 9 May 14 for 
confinement.  


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of 
an error or an injustice with the court-martial process.  

JAJM notes that, on 15 May 12, the applicant pled guilty and was 
convicted before a judge alone at a general court-martial 
convened at Peterson AFB, Colorado.  The applicant was convicted 
of one specification each of possessing and distributing one or 
more visual depictions of minors engaging in sexually explicit 
conduct, in violation of Article 134, of the Uniform Code of 
Military Justice (UCMJ).  The applicant was sentenced to a 
dishonorable discharge, confinement for 25 months, to be reduced 
to the grade of airman basic (E-1), and forfeitures of all pay 
and allowances.  In accordance with the pretrial agreement, the 
convening authority approved only 24 months confinement and the 
remaining sentence as adjudged.

The record was forwarded to the Air Force Court of Criminal 
Appeals (AFCCA), which affirmed the findings in whole on 5 Nov 
13.  The AFCCA addressed the following issues on appeal: 
ineffective assistance of counsel claim; the lack of a fact-
finding hearing to determine whether trial counsel failed to 
provide effective assistance of counsel; and the claim that the 
approved sentence was illegal.  The AFCCA found all of the 
claims without merit.  It appears that circa Jan 14, the Court 
of Appeals for the Armed Forces (CAAF) was petitioned for a 
grant of review; the case was affirmed and the petition denied. 
Final action was taken on the applicant's case on 22 Apr 14.

The punishment adjudged by the military judge and approved by 
the convening authority appears to be within the range of 
permissible punishments, as the maximum punishment of 30 years 
confinement was agreed to by the parties at the time of trial. 
The applicant was afforded all his appellate rights.  The 
applicant argues through his counsel essentially that he had 
ineffective assistance of counsel at his trial. His counsel 
contends that post-trial applicant hired an independent expert 
in computer forensic examination who advised that it was 
possible to accidentally download and possess child pornography, 
and that it was ineffective assistance of counsel that his 
original defense counsel had not hired a computer forensic 
examiner.  Furthermore, the applicant's counsel argues that 
AFOSI continued to question applicant after he requested an 
attorney, and that a suppression motion should have been filed 
by applicant's trial defense counsel.  The applicant also 
includes a number of letters written on his behalf by character 
references that generally state in essence the applicant is a 
good person, and they do not believe the applicant would commit 
the offense to which he pled guilty.

The complete JAJM evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel refutes virtually every point made by the OPR and 
requests the Board disregard the opinion and reiterates the 
request for relief.

Counsel notes multiple allegations of error identified in their 
petition were not evaluated by JAJM and the opinion reflects 
complete and total deference to the procedural history of the 
court-martial process and actions by appellate authorities in 
the case. 

Counsel disagrees with the contention that there were no errors 
or injustice in the investigation and judicial stages of the 
case and contends that JAJM fails to recognize these issues in 
conjunction with his petition for clemency.   

Counsel contends that JAJM has an obligation to conduct an 
independent review of the matters identified in their petition 
for relief and second, to consider the other matters submitted 
by the applicant independent of the court-martial process in 
determining whether or not clemency should be granted in the 
case.  Based on the extreme seriousness of the case, the impact 
of the direct and collateral consequences of the General court-
martial findings on the applicant’s civilian life (to include 
his registration as a sex offender), "a rubber stamp" of 
previous actions by at the trial level and on appeal are 
insufficient in this case.

Counsel further reiterates his disagreement with the opinion 
because other matters submitted in the applicant’s defense were 
not addressed and the far reaching and devastating collateral 
impacts of this type of conviction merits clemency.

The counsel’s complete response is at 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 error or injustice.  We note that 
this Board is without authority to reverse, set aside, or 
otherwise expunge a court-martial conviction.  Rather, in 
accordance with Title 10, United States Code, Section 1552(f), 
actions by this Board are limited to corrections to the record 
to reflect actions taken by the reviewing officials and action 
on the sentence of the court-martial for the purpose of 
clemency.  We find no evidence that indicates the applicant’s 
service characterization, which had its basis in his conviction 
by general court-martial and was a part of the sentence of the 
military court, was improper or that it exceeded the limitations 
set forth in the Uniform Code of Military Justice.  We have 
considered the applicant's overall quality of service, the 
general court-martial conviction which precipitated the 
discharge, the seriousness of the offense to which convicted, 
the letters of character reference, and the evidence submitted 
in support of the appeal; however, we did not a sufficient basis 
upon which to favorably consider this application or that 
clemency is warranted.

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.



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-2014-04129 in Executive Session on 4 Jun 15 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 4 Oct 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 14 Jan 15.
	Exhibit D.  Letter, SAF/MRBR, dated 25 Jan 15.
	Exhibit E.  Letter, Applicant’s Counsel, dated 18 Feb 15.