RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01441
		INDEX CODE:  126.03
		COUNSEL:  
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  10 NOV 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:
 
The Article 15, Nonjudicial Punishment (NJP), imposed on 31 Oct 05 be removed from his records; or in the alternative, the forfeiture of pay be reduced.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the Article 15 was unfair and unjust, it was not supported by the evidence, and the imposed forfeiture was excessive and disappropriate to the offenses.

He did not appeal, because he did not believe the appellate authority could be objective since the current AFMC/IG is the individual who administered punishment and the current AFMC/CV was the commander who removed him from command.

In support of his request, the applicant provided a personal statement, a statement by his Defense Counsel, which states in part, the applicant was treated unfairly in regard to the Article 15 action and that both Article 92 Dereliction of Duty offenses, alleging misuse of his government travel card, are additional examples of overreaching.  He also provided a copy of the Office of Special Investigation (OSI) Report of Investigation (ROI), dated 16 Jun 05, Intent to Impose Nonjudicial Punishment, dated 19 Sep 05, Article 15 Response Package, dated 31 Oct 05, a copy of a Blackberry Policy Letter, two Statements, a copy of his Attorney’s Letter, dated 28 Oct 06 and two Air Force Form 707s, Officer Performance Reports.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant in the Regular Air Force on 12 Nov 82, and was progressively promoted to the grade of colonel.  He was notified by his commander on 19 Sep 05 that he would be offered NJP pursuant to Article 15, UCMJ.  

The bases for the action were dereliction of duty, in violation of Article 92 UCMJ, and three specifications of wrongfully endeavoring to impede an investigation, in violation of Article 134, UCMJ.  The allegations were based on the applicant’s alleged negligent failure to review travel vouchers, willful misuse of a government cell phone and government travel card for personal use, making a false statement to an OSI agent concerning these infractions, and wrongful suggestions to and intimidation of a witness.  

The applicant consulted with counsel, waived his right to demand trial by court-martial, and accepted nonjudicial punishment proceedings.  He submitted written statements in his own behalf and requested an appearance before the commander.  

On 31 Oct 05, his commander found that he committed one or more of the offenses.  Specifically, the commander found he committed all of the offenses alleged with the exception of the Article 134, Obstruction of Justice/Impeding an Investigation violation.  His punishment consisted of forfeiture of $3,983 pay per month for two months and a reprimand.

He currently serves on active duty in the grade of colonel.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states in part, the applicant has not provided a sufficient basis to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  He has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.  Absent a clear error or injustice, the applicant should not prevail.  Procedural and substantive requirements having been met in this Article 15 action, the applicant’s request for relief is without legal or factual justification.

A commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both as to whether nonjudicial punishment is appropriate, and if so, as to the nature and amount of punishment.  Unless a commander’s authority to act in a particular case is properly withheld, that commander’s discretion is unfettered so long as the commander acts within the limits and parameters of the commander’s legal authority.  Service members must first be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  The service member may then consult with a defense counsel to decide whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  

Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.  Nonjudicial punishment does not constitute a criminal conviction.  A member accepting nonjudicial punishment proceedings may have a hearing with the imposing commander.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  The commander must consider any information offered during that hearing and must be convinced by reliable evidence that the member committed the offense before imposing punishment.  Members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  The appeal authority may set aside the nonjudicial punishment action, set aside the punishment, decrease its severity, or deny the appeal.

Commanders considering nonjudicial punishment should consider the nature of the offense, the record of the service member, the need for good order and discipline, and the effect of good order and discipline on the service member and the service member’s records.  The applicant’s commander, having applied that standard to the individual circumstances of the applicant’s case, determined that Article 15 action was warranted.  The applicant waived his right to trial by court-martial and chose instead to accept nonjudicial punishment proceedings, placing the determination of guilt or innocence, as well as punishment, in his commander’s hands.  

The applicant should not prevail absent clear error or injustice.  The commander was charged with weighing all the evidence before her to make her decision.  The commander ultimately resolved the specifications concerning the alleged violations of Articles 92 and 107 against the applicant, and resolved the alleged violation of Article 134 in his favor.  There is no evidence to believe that the commander’s decisions were either arbitrary or capricious.  The commander reviewed an extensive report of investigation containing numerous witness statements and including applicant’s own admissions.  There is no indication that the commander’s determination of the applicant’s culpability was based on anything other than the evidence, and the record does not corroborate his allegation that the Article 15 action for the aforementioned offenses was a pretext to punish him for a suspected incident of adultery.

Although applicant contends the evidence does not support the imposition of nonjudicial punishment, the evidence that the commander reviewed prior to making her decision indicates otherwise.  

He does not deny that the acts for which he was punished actually occurred, he simply argues why he does not believe he should be punished.  He admits that he did not review his travel vouchers properly, and that he is ultimately responsible for the errors that were discovered.  He admits that he used the government cell phone for personal use, but he states he was under the mistaken belief that he could do so as long as he did not exceed the allotted number of minutes in the calling plan.  He does not dispute using his government travel card when he was not in temporary duty (TDY) status, but he states that he did not seek reimbursement for the charges and he paid the balance immediately.  The same applies for the false official statement allegations.  He does not necessarily deny making the statements; he simply has explanations as to why the statements were not false.  The commander considered all the evidence presented and ultimately decided he was guilty by a preponderance of the evidence.  

Commanders on the scene have first—hand access to facts and a unique appreciation for the need of morale and discipline in their command that even the best intentioned higher headquarters cannot match.  A set aside of a commander’s action should only be granted when the evidence demonstrates an error or a clear injustice.  The applicant availed himself of his opportunity to present his case to the commander, who had the most relevant knowledge of the information surrounding the Article 15 action.  The evidence indicates he was accorded all the rights to which he was entitled under Article 15, UCMJ.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states in part, the acts described in paragraph three of the advisory opinion, simply do not amount to a crime punishable under the UCMJ.  The allegation that he did not review his travel vouchers properly is without merit.  Defense Exhibit E in the original defense Article 15 submissions state, of the vouchers he submitted during the timeframe, only one contained an error attributable to missing lodging receipts, for which the technician requested and received clarification.  Contrary to the Article 15 specification and XXXXXXXXXXXXXXXXXX statement that he did not review his vouchers, there is also evidence in the package indicating he gave his vouchers a quick review before signing, although he acknowledged his executive officer prepared the vouchers.  One of the specifications of wrongful travel card use relates to an additional nights lodging in Georgia.  He was on TDY orders during the time of this alleged offense.

What is important to note is the fact that he was on TDY orders for the aforementioned two nights lodging and did not use the card for any longer period of time than he was authorized.  He simply used the card for lodging twice at the same location, because he was not feeling well enough to depart after the first nights lodging in Georgia.  Similarly, the JAJM response stresses the fact that he did not deny the acts for which he was punished actually occurred.  He does deny very strongly the acts for which he was punished amount to UCMJ violations.  A fair reading of all the facts and circumstances surrounding this Article 15 action leads to only one logical conclusion.  He has suffered a significant injustice, both in the findings of guilty for the charges and specifications as well as the amount of forfeitures imposed as punishment.

The applicant’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.  The applicant’s complete submission was thoroughly reviewed and his contentions were duly noted.  However, we did not find his assertions nor the documentation submitted in support of his appeal, sufficiently persuasive to warrant corrective action.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  Furthermore, we find no evidence that during the nonjudicial proceedings he was denied any rights to which entitled.  To the contrary, the evidence before us indicates that he was represented by counsel, waived his right to demand trial by court-martial, and accepted the Article 15 process as the forum for resolution of the charged offenses.  Having exhausted that forum and not having received a favorable result, he now contends the acts for which he was punished did not rise to a level amounting to UCMJ violations.  We disagree.  Based on the contents of the OSI Report of Inquiry, we believe it was reasonable for the commander to initiate nonjudicial proceedings.  Moreover, we believe the appropriate time for the applicant to have raised this issue was when first offered the nonjudicial proceedings.  Had he truly felt the charges were not supported, he could have demanded a trial by court-martial, with its higher standard of evidence, and contested the charges against him, rather than accept the nonjudicial proceedings.  Further, although he contends he did not appeal the punishment because the appellate authority could not be objective, he provides no evidence to support this contention.  Therefore, in the absence of evidence there was an abuse of discretionary authority, or that his substantial rights were violated, we find no basis upon which to favorably consider this application.

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 issue(s) involved.  Therefore, the request for a hearing 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-2007-01441 in Executive Session on 27 September 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 12 Jun 07.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Jun 07.
    Exhibit E.  Letter, Applicant, dated 17 Jul 07.