RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-03008 INDEX CODE:	126.00, 131.00 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
1.	The non-judicial punishment action he received on 6 Dec 05, be set aside.

2.	His Officer Performance Report (OPR) closing out in Jan 06 referring to non-judicial punishment be rewritten.

3.	His Performance Recommendation Form (PRF) for the 2006 (V0607A) Air Force Reserve 0-6 Selection Board be rewritten and he be promoted to 0-6 as of the Oct 2006 Promotion Selection Board.

APPLICANT CONTENDS THAT:
His career was sabotaged with charges that had no mens rea attached with them. He has never been an Illinois resident. DoD Finance stated he was in the correct temporary duty (TDY) status and, that every penny claimed was accounted for. He knows he did not receive any money that he was not entitled to. He obeyed orders when using the Government Travel Card at JC Penny’s and he claimed less vicinity miles than he traveled.

Tennessee (TN) has been his legal domicile since 1995. He was born there, lives there, and pays taxes there. After September 11, he volunteered from the Mississippi (MS) Air National Guard (ANG) to enter a two and a half (2½) year active duty Reserve assignment at Scott AFB (Aug 02 to Jan 05). His orders moved him from the home he owned in, MS, and his retirement orders and the traffic management office (TMO) returned him to the home he owned in MS on 31 Jan 05. When he reported for a one-year temporary duty (TDY) tour (Air Attaché to Chad, Africa) after his retirement as a Reservist on 3 Feb 05, his family remained in the house he owned in, MS.

It was less than a week prior to his retirement that he was informed he would be brought to Scott AFB for a one-year tour beginning 3 Feb 05, rather than returning to his civilian job and accomplishing his Reserve duty at Bolling AFB, District of Columbia. His TDY status was confirmed by the authorities who cut his orders from MS to Illinois (IL), and by an individual at AFRC/FMFQ, who confirmed he was in the correct travel status and;

therefore, was in fact due TDY funds. It was confirmed to the judge advocate general’s (JAG) office that the TDY status was the only one possible for the tour. It was a factual and legal impossibility for him to be an IL resident. The charges claiming he deceived the Government in this manner were and are without merit.

A further part of his TDY entitlement issue involved his lodging arrangements. When he reported to his TDY location, he entered a legal, implied agency contract (Gorton v. Doty 69 P.2d 136) with his landlord. He filed a travel voucher for Feb 05 and again for Mar 05 and placed one total figure on each for all expenses under local per diem guidance. Subsequently in Apr 05, he was instructed that he should have itemized the expenses. He re- filed the vouchers with an itemized accounting, detailing all expenses incurred, and received proof he owed nothing. He was never asked to repay any TDY funds.

In May 05, he was accused of receiving both retirement and active duty pay by an Air Force auditor. When he returned to Scott AFB, IL, on 3 Feb 05, as a Reservist, he immediately notified the Department of Defense (DoD) to stop and recoup retirement pay. Additionally, the auditor took it upon himself to locate the house he rented and stated in a deposition, that in his opinion, it was not worth the current per diem rate of $1,800 for St. Clair County, IL. Before the auditor made his personal observation, he had already returned unearned retirement pay. The total expenses he claimed did not exceed the local per diem rate for Scott AFB.

He was charged with misuse of his Government Credit Card.  On
3 Feb 05, he was ordered to use the card for all expenses incidental to TDY. He paid for food, gas, hotel, and when ordered in Feb 05 to attend a conference in civilian clothing, he bought $110.81 worth of clothing at JC Penney’s on the card as ordered. This mistake on his part was a misunderstanding for which he was counseled in Mar 05 by his supervisor and the matter was closed. It is wrong to add this charge and at a legal minimum, it is double jeopardy, violating the 6th  Amendment.

He was also accused of improperly claiming vicinity privately owned vehicle (POV) mileage while TDY. He claimed ten (10) miles one way from his house to the base and claimed 30 trips during Feb and Mar 05. The Special Agent who investigated proffered that the actual one-way distance was only eight (8) miles and that he could only have done about 23 trips per month. The agent failed to account for the closure of the front gate at Scott AFB during the spring and summer of 05, requiring drivers to enter the Cardinal (back) gate (many more miles than he claimed). His supervisor attested to the 80 official trips he was ordered to make in his private vehicle in 2005. This mileage would have exponentially offset the two (2) miles per trip and seven (7) trips per month of concern.  He did not claim these trips on his

vouchers because he was not concerned over such small amounts due to him.

He never had any intent to misappropriate any funds or entitlements from anyone, much less the Air Force family he had served for over 20 years. The investigation showed he had not claimed anything not due to him and there was no money due to the Air Force.

His OPR closing out in 2006 caused an unnecessary supplemental promotion board and was meant to be continuous punishment since it was highlighted with an upside down date stamp.

He believed his non-judicial punishment was continuous and highlighted by his chain of command ensured it was highlighted by changing his OPR for an upside-down date stamp, which created waste in a supplemental promotion board.

He is innocent of any charges for which he was punished. Multiple life changing events happened to him in Jan 05. He retired and returned to his legal residence in TN. More significantly, his father died of a sudden heart attack and then he and his wife filed for divorce after she took his three children to MS, 500 miles from his duty location. Because he wanted to continue to serve, two days after his retirement he accepted and received the TDY activation back at Scott AFB.

In 2005, he completed Air War College, had the responsibility for major new systems being integrated at Scott AFB, and was furthering his education at night, which he has completed; all while he traveled 1,000 miles every two weeks to see his children. He served in Iraq and Afghanistan and endured mortar attacks in a flack vest. His goal has been to work hard, serve the Air Force and his country, and raise Godly children.

Even after the Article 15, he did not quit and has served over
365 days of active service since this event. He was and is prepared to work as an Emergency Preparedness Liaison Officer had he been promoted to 0-6 on his primary board in Oct 06.

He advised the promotion board of his deployment orders to the Area of Responsibility (AOR) in the summer of 05 that were cancelled based on the allegations. Had he gone on that deployment, his stratification would have been much different on his Promotion Recommendation Form (PRF).

In support of his request, the applicant provided statements, e- mails, memorandums for record, vehicle registration records and driver’s license, voting record, a copy of a non-availability letter, two OPRs, Special Orders, letters of appreciation, character letters, a letter to the Board President, and a copy of his 2006 PRF.

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

STATEMENT OF FACTS:
The applicant was a lieutenant colonel Reservist on active duty at Scott AFB when he was investigated for filing false travel vouchers.

He submitted travel vouchers with claims for $1,800 per month for his rent from Feb 05 to Apr 05. However, upon investigation, his landlord claimed he only received checks from the applicant for
$1,000 per month. The applicant provided an amended lease that required him to pay $1,400 per month; however, his landlord asserted that he only paid $1,000 per month. In addition, the investigation into his travel vouchers revealed unauthorized use of his Government Travel Card.

On 15 Nov 05, the applicant was offered non-judicial punishment for dereliction of duty for using his Government Travel Card for unauthorized purposes, five instances of various frauds against the United States, including submitting rent receipts, a rental contract, and other documents in conjunction with making false claims; conduct unbecoming of an officer and a gentleman for wrongfully and dishonorably claiming a MS address as his residence in order to draw per diem while on a 365 day active duty tour at Scott AFB, even though he had rented and maintained a residence in IL for the previous 16 months.

On 17 Nov 05, and after consulting with counsel, he waived his rights to demand trial by court-martial and accepted non-judicial punishment proceedings. He made oral and written presentations to his commander. On 6 Dec 05, the commander found he committed the alleged offenses and imposed punishment in the form of forfeiture of $2,500 pay per month for one month and a reprimand. The applicant chose not to appeal the punishment. His punishment was reviewed and determined to be legally sufficient.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicant has not demonstrated an error or injustice. In this case, the applicant has not raised any genuine doubt as to his guilt of the offenses for which he was punished or established any error or injustice in his non-judicial punishment action such that a set aside would be in the best interest of the Air Force.

JAJM states the information provided by the applicant does nothing more than raise additional questions about his conduct at the time of the offenses.  The commander at the time of the

Article 15 had the best opportunity to evaluate the evidence in the case and weigh it against the applicant’s written response and verbal presentation. With that perspective, the commander exercised the discretion that the applicant granted him and found the non-judicial punishment appropriate in this case. The legal review process shows that the commander did not act arbitrarily or capriciously in making his decision.

The complete AFLOA/JAJM opinion is at Exhibit C.
HQ ARPC/DPB recommends denial. DPB states the applicant has not provided effective evidence to strongly indicate the original OPR is incorrect. The most effective evidence consists of statements from the evaluators who signed the report or statements from others in the rating chain when the report was signed. There is no evidence the rating chain that prepared the referral OPR wishes to change their minds, or any indication that their original statements were incorrect.

DPB states there is nothing negative contained in the PRF. There is no documentation contained in his application that shows the senior rater of record now believes the PRF provided for the V0607A promotion board was in error or omitted facts.

DPB states two promotion boards (Oct 06 and Oct 07) have reviewed the applicant’s records and have not scored it high enough using the whole person concept, for the applicant to be among those officers found best and fully qualified for promotion. Discounting the findings of two separate promotion boards would not seem to be in the best interests of the Air Force. The applicant has not yet attained his mandatory separation date of June 2012, so he will continue to meet promotion boards to the Reserve grade of colonel until the board tentatively scheduled for Oct 2011. He could still be selected for promotion by a later promotion board.

The complete ARPC/DPB opinion, with attachment, is at Exhibit D.
DFAS-JFEAA/IN states they cannot make any recommendation based on the evidence before them and referred the case to the individual offices of primary responsibility based upon the applicant’s request.

The complete DFAS-JFEAA/IN opinion is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:
He states the JAG has omitted any evidence that would refute his claims of innocence. By omission, they admit he was a TN resident; he did not deceive the Government by not claiming his IL residency; he did not claim extra vicinity miles; he did not

receive any monies not entitled; and he was never asked to return any funds. There can be no fraud unless there are missing funds.

He did not exhibit any pattern of activity as the JAG proposed. He accepted the non-judicial punishment to preserve retirement and medical benefits for his children.

He was following orders and it was most certainly unintentional if the charge was misuse.

The applicant’s complete response, with attachments, is at Exhibit G.

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 took notice of the applicant's complete submission in judging the merits of the case; however,  we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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 Docket Number BC- 2008-03008 in Executive Session on 19 February 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member

The	following	documentary	evidence	was	considered	for	Docket Number BC-2008-03008:

Exhibit A.	DD Form 149, dated 8 Aug 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFLOA/JAJM, dated 29 Oct 08.
Exhibit D.	Memorandum, ARPC/DPB, dated 7 Nov 08, w/atch. Exhibit E.	Memorandum, DFAS/-JEAA/IN, dated 25 Nov 08.
Exhibit F.	Letter, SAF/MRBR, dated 23 Dec 08. Exhibit G.	Applicant’s Rebuttal, dated 20 Jan 09.

Panel Chair