RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01684
		INDEX CODE:  126.04

		COUNSEL:  RONALD P. KELLER

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 initiated on 19 Apr 98 and imposed on 6 Jun 98 be set aside and removed from his records.

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APPLICANT CONTENDS THAT:

He did not commit the alleged offenses.  He was not permitted to present a complete defense.  At no time was his conduct unprofessional.

In support of his appeal, the applicant provided a statement from counsel, a personal statement, and copies of the Article 15, a response to an officer grade determination (OGD), and a report of investigation.

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

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STATEMENT OF FACTS:

Applicant was relieved from active duty on 31 Jan 99 and retired, effective 1 Feb 99, in the grade of lieutenant colonel.  He was credited with 23 years, 7 months, and 27 days of active duty service.

The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force.

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AIR FORCE EVALUATION:

AFLSA/JAJM noted that the applicant, then a lieutenant colonel assigned to the Air Force Institute of Technology (AFIT), Wright-Patterson AFB, Ohio, was offered nonjudicial punishment proceedings on 19 Apr 98 by the AFIT/CC for negligent dereliction of duty consisting of:  failing to follow appropriate procedures when administering a Federal Express account for AFIT/ENG by not ensuring that AFIT/ENG personnel did not send personal correspondence at the government discount rate; and, using a Federal Express account set up for AFIT/ENG for official business to send personal correspondence at the government rate, both in violation of Article 92, UCMJ.  In addition, the applicant was charged with having twice filed false and fraudulent claims for reimbursement for personal correspondence sent via Federal Express, both times in the amount of $12.48, in violation of Article 132.  On 19 May 98, after consulting with counsel, the applicant waived his right to demand trial by court-martial and accepted nonjudicial punishment.  He made a personal appearance before the AFIT/ENG and submitted a written presentation.  The matter was then forwarded to the AU/CC for action.  On 6 Jun 98, the AU/CC determined that the applicant had committed the offenses alleged and imposed punishment consisting of forfeiture of $500 pay and a reprimand.  The applicant's appeal to the AETC/CC was denied on 10 Jul 98.

According to JAJM, the applicant’s commander had sufficient evidence before him upon which to base his finding that the applicant had made false claims.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  While the specifications as to the derelictions of duty should be corrected, the evidence presented by the applicant was insufficient to warrant setting aside the entire Article 15 action, and did not demonstrate an equitable basis for relief.  In JAJM’s view, the applicant has provided no evidence of a clear error or injustice related to the entire nonjudicial punishment action.  Therefore, JAJM recommended no relief beyond deleting the specifications 1 and 2 under Article 92 be granted.

A complete copy of the  evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, counsel asked that the Board use its education, training, and experience in making a fair decision in this case.  He does not believe that it is a fair and just decision to allow the applicant to suffer the stigma of an Article 15 determination when it was clear that he had no criminal intent when the actions were undertaken.  There was no evidence that he needed money, or other motive for defrauding the Government.  Quite simply, in counsel’s view, this was merely an oversight, and he hopes that the Board would seek to correct this matter.

Counsel’s complete response is at Exhibit E.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice regarding the applicant’s request that the nonjudicial punishment under Article 15 imposed on 6 Jun 98 be set aside and removed from his records.  Normally we would not be inclined to substitute our judgment for commanding officers who are closer to events.  However, after a thorough review of the facts and circumstances of this case, we are persuaded that corrective action is warranted.  First, we agree with JAJM that the applicant was not derelict in the performance of his duties by negligently failing to follow procedures when administering a Federal Express account.  Secondly, we are not convinced that there was any fraudulent intent on the part of the applicant when claims were filed for reimbursement for official correspondence that included his personal correspondence.  In our view, this was the result of administrative oversight caused by poor recordkeeping.  Thirdly, we opine that the punishment meted out was unduly harsh for the small dollar amount involved in the reimbursement for the applicant’s personal correspondence.  In view of the foregoing, we recommend favorable action on the applicant’s request that the Article 15 be set aside and removed from his records. 

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the nonjudicial punishment under Article 15, UCMJ, initiated on 19 Apr 98 and imposed on 6 Jun 98, be declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.

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The following members of the Board considered this application in Executive Session on 8 Nov 01, under the provisions of AFI 36-2603:

     Panel Chair
Member
     Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 15 Jun 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 11 Sep 01.
     Exhibit D.  Letter, SAF/MIBR, dated 28 Sep 01.
     Exhibit E.  Letter, counsel, dated 2 Nov 01.

                                   

AFBCMR 01-01684

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to , be corrected to show that the nonjudicial punishment under Article 15, UCMJ, initiated on 19 Apr 98 and imposed on 6 Jun 98, be, and hereby is, declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.