RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02200
		INDEX NUMBER:

		COUNSEL:  

		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 he received on 8 May 1998 for travel voucher and leave irregularities be set aside.

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APPLICANT CONTENDS THAT:

He followed approved and established office procedures in filing several travel vouchers during an extended period of temporary duty with Headquarters Air Force Reserve Command (AFRC).

He repaid all travel funds in question within one day of being informed that his travel vouchers had been paid incorrectly.

He believes that he was caught up in a political struggle between his supervisor and the AFRC vice commander and has provided an affidavit from his supervisor that describes what happened.

He has suffered an injustice, and as a Vietnam veteran who flew over 190 combat missions, never thought he would be attacked so unfairly.

In further support of his appeal, counsel for the applicant submits a six-page brief of counsel along with 14 other attachments.

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

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STATEMENT OF FACTS:

The pertinent facts pertaining to this case are contained in the evaluation prepared by AFLSA/JAJM at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s request be denied.

On 13 Apr 1998, the applicant was offered nonjudicial punishment for four specifications of dereliction of duty in violation of Article 92, UCMJ.  The specifications involved travel voucher irregularities with one allegation related to leave irregularities.  On 27 Apr 98, after consulting with military defense counsel, the applicant waived his right to trial by court-martial and accepted nonjudicial punishment.  He submitted a written presentation and made a personal appearance before his commander.  After considering the evidence and the applicant’s response, the commander determined that the applicant committed the offenses and imposed punishment of a reprimand.  On 12 May 98, the applicant appealed the punishment.  The appellate authority, HQ USAF/CV, denied the applicant’s appeal on 13 Jul 98.

The applicant was on extended temporary duty (TDY) orders to Robins AFB, GA, over a period of at least two years in the 1996 through 1998 timeframe.  While on TDY to Robins, the applicant would also go TDY to other locations.  The applicant would file his long-term TDY travel vouchers (TDY to Robins AFB) with Dobbins Air Reserve Base (ARB) on a monthly basis.  The applicant would file his short term TDY travel vouchers (TDYs from Robins AFB) with the local Robins AFB finance instead of through Dobbins.  This resulted in the applicant receiving double payments on per diem and lodging during the periods when he was TDY from Robins AFB.  At the time, finance was unable to reconcile this discrepancy since the vouchers were filed at two different finance offices.  All reservists are required to file their travel vouchers through Dobbins ARB in order to prevent double payments from occurring.

The material presented by the applicant indicates that he was recalled to active duty from the retired reserve to manage Operation TRANSAM.  Because of fiscal restraints, he was placed on TDY orders to Robins and then went on subsequent TDYs from there.  He apparently maintained quarters at Robins when he went on TDYs from there.  The TDY orders sending him to Robins were funded and paid from Dobbins ARB while the TDYs from Robins were paid from TRANSAM funds maintained at Robins.

The offenses listed in the Article 15 alleged that the applicant knew or should have known of his duties to follow proper procedures in filing travel vouchers and leave paperwork and that he was negligent in failing to follow the proper procedures.  The applicant claims to have followed local office policy for filing his short term vouchers with the Robins AFB finance office.  Reserve pay procedures, however, differ from active duty pay procedures and it is common knowledge that all travel vouchers must be filed through Dobbins ARB.  It is reasonable to conclude that the applicant, a senior Reserve officer with over thirty years of service, should have known of his duties to file his travel vouchers with Dobbins ARB.

As to the second and third allegations (claiming dual lodging expenses and dual TDY expenses) applicant states he was not aware he was being overpaid as he assumed the vouchers were being reconciled and the money was going straight to his bank account.  This argument fails on its face, as applicant necessarily had to physically fill out the voucher and file for reimbursement for his expenses.  He certified his accounting was true and correct under penalty of law.  The applicant states that he assumed that he was correctly paid.  For such an assumption to be valid, it requires that the individual to accurately relate his travel status to the individual settling the voucher.  The applicant failed to do this and as a result, was paid travel expenses to which he was not entitled.

Applicant cites as new evidence an affidavit from his supervisor that indicates that he was a scapegoat in the ongoing struggle between the supervisor and one of the commanders.  The affidavit fails to establish the causal relationship between the applicant and the struggle between the other two.  The AFRC commander, with the advice of his independent staff judge advocate, initiated action against the applicant and the appeal authority was the vice chief of staff of the Air Force, who also received advice from his independent staff judge advocate.  Even assuming that the applicant was in the frag pattern of a dispute, he fails to establish how that dispute was furthered by convincing the commander and appellate authority to take a frivolous action against him.

The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation and indicates that he and the applicant believe that the documents presented by the applicant establish that a clear injustice occurred when the applicant received an Article 15 for allegedly being derelict in the performance of his duties.

First and foremost, the applicant demonstrated that the travel vouchers he filed with the Robins finance office were filed in accordance with the orders he was given and the policy in effect in his office.  This is addressed in the affidavit supplied by his supervisor at the time.  

Secondly, the evaluation places undue emphasis on the claim that the commander imposing punishment acted impartially and was not involved in the political struggle between the applicant supervisor and the vice commander.  More importantly, the commander came to his decision before all the facts were available,i.e., before the vouchers were fully reconciled.  He never knew how much the applicant might have been overpaid, if anything.  Nor was he aware of the fact that the applicant’s supervisor successfully challenged the disciplinary action taken in the supervisor’s case.  They believe that the evidence submitted by the applicant objectively and fairly supports his stated belief that he acted reasonably in filing his TDY vouchers as he did.

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.  After reviewing the complete evidence of record, the majority of the Board believes that there were sufficiently contributory factors to question the appropriateness of the Article 15 action taken against the applicant.  It appears that the applicant was recalled to active duty under circumstances that set the scenario for the issues that occurred.  The decision to bring him back to active duty in a TDY status instead of a permanent change of station status created a situation where he was routinely required to perform short term TDYs while in a long term TDY status.  The majority of the Board does not find the guidance contained in the Individual Reserve Guide to be completely clear and unambiguous on the proper procedures for filing vouchers in situations like the applicant.  The applicant’s supervisor has confirmed that it was office policy that the applicant file his vouchers for TDY from Robins Air Force Base with the local Robins finance office.  AFLSA/JAJM states in their evaluation that it is common knowledge within the Reserves that all travel vouchers must be filed through Dobbins Air Reserve Base.  However, it is not addressed what the applicant’s actions should have been given the guidance provided by his supervisor.  Further, the majority of the Board questions why there was not a procedure in place to preclude the processing of vouchers filed by Reservist at Robins if, in fact, they were all required to be filed through Dobbins.  It is noted with interest that the instructions for completing the DD Form 1351-2, Travel Voucher, contained in the Individual Reserve Guide states “Do NOT send your travel voucher to HQ ARPC or to any other FSO.  If you do not send the travel voucher to Dobbins, your travel voucher will be returned and your payment will be delayed.”  This obviously did not happen in the applicant’s case.  While this Board normally has great confidence in the commander’s judgement in cases of this nature, the majority of the Board believes that the applicant is being held solely responsible for what appears to be systemic problems in the processing of vouchers that were beyond his control.

In addition, the majority of the Board notes the amount the applicant was overpaid, $406.61 vice the original estimated amount of $4,134, creating doubt that the applicant’s actions were deliberately done for personal financial gain.  Therefore, given the totality of circumstances and in the interest of equity and justice, the majority of the Board recommends that the record be corrected as indicated below.

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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 13 April 1998, and imposed on 27 April 1998, be set aside 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 2 April 2002, under the provisions of AFI 36-2603:

    Panel Chair
	Member
	Member

By majority vote, the Board voted to correct the records, as recommended.  Mr. Voted to deny the applicant’s request and submitted a minority report, which is attached at Exhibit F.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.

    Exhibit C.  Memorandum, AFLSA/JAJM, dated 31 Dec 01.
    Exhibit D.  Letter, SAF/MIBR, dated 18 Jan 02.
    Exhibit E.  Letter, Applicant’s Counsel, dated 18 Feb 02.
    Exhibit F.  Minority Report.

                                   

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
			FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of 

	    In Executive Session on 2 April 2002, a majority of the Board voted to grant the applicant relief.  I disagree with their recommendation.  Military justice is at issue.  As such, the Board should not grant relief unless the commander’s action was unjust or lacked a factual basis.

	    The applicant received an Article 15 with four specifications; it was later upheld on appeal to the Vice Chief of Staff.  Most of the evidence deals with the proper procedure to file vouchers, at issue in two of the specifications.  In regards to the issue of knowing where to file his vouchers, guidance provided to the applicant by his supervisor was clearly contrary to that contained in the Individual Reserve Guide.  For that reason, one can assert, as the majority did, that applicant was either innocent of these two specifications or his offense should have been handled by a lesser penalty.  If that were the extent of it, I would not file a minority opinion even if I felt the Board was impinging upon the commander’s military justice prerogative.

	    However, I find the evidence persuasive that the applicant did commit the other two offenses and did not effectively rebut the charges, either in his response to the Article 15 or in his application to the Board.  Regarding the specification that the applicant should have known of his duty to obtain prior approval for dual lodging, I find the evidence compelling that the applicant willfully committed this violation.  The evidence shows that his supervisor requested and was denied approval for dual lodging, yet the applicant still processed his voucher in the belief that he should have been deemed qualified.

	    The evidence also substantiates the specification that the applicant knew or should have known of his duty to obtain and properly execute an Air Force Form 988 and that he failed to do so.  The applicant maintains he executed the AF Form 988s and filed them in his personnel folder in the Special Projects Office.  One must question why he would execute the forms and file them away, clearly not complying with proper procedures.  He states that he had documented his leave on his travel vouchers.  If he felt that this was the proper manner of requesting leave, why execute the 988s at all.  His decision to submit all of the forms at one time to his Financial Service Office for processing after the investigation had started is certainly suspect.

	    I do not find the actions of the commander to be beyond the bounds of reasonableness, certainly neither arbitrary nor capricious.  The applicant elected to resolve the allegations in the nonjudicial forum and vested his commander with the responsibility to decide whether he had committed the offenses.  The commander acted within the scope of his discretionary authority, and the applicant has not presented a compelling case for relief.  There are insufficient grounds for the Board to substitute its judgement for that of the commander.

					

AFBCMR 01-02200

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 be corrected to show that the nonjudicial punishment under Article 15, UCMJ, initiated on 13 April 1998, and imposed on 27 April 1998, be, and hereby is, set aside and expunged from his records, and all rights, privileges, and property of which he may have been deprived be, and hereby, are restored.