RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00538 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: The Record of Nonjudicial Punishment (NJP), imposed on 5 Dec 2012, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), be mitigated to a forfeiture of pay and/or a suspended reduction to the rank of staff sergeant (SSgt, E-5). ________________________________________________________________ APPLICANT CONTENDS THAT: On 5 Jan 2011, $2,068.47 was unaccounted for while she was deployed as a Disbursing Agent (DA). On 14 Jan 2013, someone gained access to the safe and stole $56,993.67. On 27 Nov 2012 she was notified by her commander that he was considering punishment under the UCMJ for violating the Article 92, negligence and failure to maintain accountability of fund cites and for failing to change a safe combination that contained the funds, as a DA while deployed. After reviewing the evidence, the commander found she was not guilty of failing to change the safe combination, but found her guilty of failing to maintain accountability of the fund cites. He imposed a punishment of reduction to the rank of SSgt, with an effective date of rank of 5 Dec 2012. The DA she replaced failed to turn over $6,210.00; however, she has received no disciplinary action for failing to maintain accountability of fund cites. Due to the extenuating circumstances surrounding this case and the fact that the commander removed the specification of failing to change the safe combination upon transfer of accountability, in violation of Article 92, UCMJ, she feels that the punishment was too harsh, grossly unfair and disproportionate to the offense. Her failure to maintain accountability of the fund cites resulted in $2,068.47 as reflected on DD Form 1081, Statement of Agent Officer's Account. She takes accountability for his amount; therefore she is not asking for the punishment to be set aside, but that it be mitigated to forfeiture of pay and/or suspension of rank reduction. Holding her accountable for the criminal acts of someone else is unjust, especially since the CDI indicated that that money was stolen by a “non-US official who had access to the house.” Moreover, the commander removed the specification of failing to change the safe combination upon transfer of accountability. Therefore she should not be held accountable for the stolen amount. She asks the Board to consider reducing the severity of the punishment to a forfeiture of pay for the amount she was not able to account for ($2,068.47. Due to the reduction in rank, high year of tenure rules will require her to separate from active duty early. In support of her request, the applicant provides a personal statement, copies of her Article 15, Command Directed Investigation (CDI) report, Summary of Duty History, and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the rank of SSgt. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant has not exhausted all other available remedies for relief nor has she shown a clear error or injustice. On 27 Nov 2012, the applicant was offered nonjudicial punishment under Article 15, UCMJ. She was charged with two specifications of dereliction of duty while deployed, for failing to maintain accountability of certain fund-cites and failing to change the combination of the safe upon transfer of accountability, in violation of Article 92, UCMJ. She was afforded the opportunity to consult with defense counsel, accepted the Article 15, and waived her right to demand trial by court-martial. She elected to present written matters and declined to make a personal appearance before the commander. On 5 Dec 2012, the commander decided that the applicant had committed only the offense for the failure to maintain accountability of certain fund-cites and withdrew the specification for the failure to change the combination of the safe upon transfer of accountability. The commander imposed punishment consisting of reduction to the rank of staff sergeant. The applicant appealed the commander's decision. On 11 Dec 2012, the appellate authority denied the applicant's appeal. The Article 15 action was reviewed and determined to be legally sufficient. 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 deny the appeal altogether if the appeal authority agrees with the action taken or may remove or modify the Article 15 if he or she disagrees in whole or in part with the action. The Manual for Courts-Martial and AFI 51-202 provide for certain relief from nonjudicial punishment, specifically, mitigation, remission, suspension, and set aside. Mitigation is a reduction in either the quantity or quality of a punishment. Mitigation is appropriate when the offender's later good conduct merits a reduction in the punishment, or when it is determined that the punishment imposed was disproportionate. The nonjudicial punishment authority who imposes nonjudicial punishment, the commander who imposes nonjudicial punishment, or a successor in command, may mitigate a reduction in grade to forfeiture in pay. Reduction in grade may be mitigated to forfeiture of pay only within 4 months after the date of the execution, which in this case, would have been 4 Apr 2013. The applicant alleges that the charge against her was unjust and disproportionate to the offense committed. She does not allege error, however, in how the Article 15 was processed. A review of the available documentation indicates that her rights were observed throughout the process. On 10 Dec 2012, she made a personal appearance before her commander and appealed the action. The commander at the time of this nonjudicial punishment action had the best opportunity to evaluate all the evidence in this case. With that perspective, the commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15. The legal review processes showed that the commander did not act arbitrarily or capriciously in making his decision. A review of the AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates that the applicant's rights were observed throughout the process of the nonjudicial punishment action. Moreover, the applicant has not exhausted the available remedies under the rules for the mitigation of punishment under the MCM and the UCMJ. The applicant does not make a compelling argument that the Board should overturn the commanders' original, nonjudicial punishments decision on the basis of injustice. The commanders' ultimate decisions on the Article 15 actions are firmly based on the evidence of the case and the punishment decision was well with the limits of the commander's authority and discretion, and the applicant may still seek to mitigate the punishment imposed through her existing chain of command. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: While the nonjudicial punishment proceedings were legally sufficient, the evidence submitted shows instances of gross unfairness. The punishment was severe for the offense of failure to maintain accountability of the fund cites that amounted to $2,086.47. This was a first time offense and the CDI shows the proximate fault of others. In light of the foregoing and because of how long ago the offense occurred, a suspension of a reduction in rank and/or a forfeiture of pay would have been rehabilitative rather than demoralizing, humiliating and financially devastating. The Article 15 itself is severe. She willingly accepted it because she admits to her part of any wrongdoing and for not asking for help when she had trouble balancing her spreadsheets; and has taken accountability for that. AFLOA/JAJM states that she has not exhausted all remedies. However, when she submitted her application, she was under the impression that her appeal to the appellate authority was the final means of appeal, hence why she even stated in her initial statement to the AFBCMR that she had exhausted all means of appeals with them, with her last hope being to appeal to an unbiased and impartial party. She received the advisory opinion on 15 Mar 2013. AFLOA/JAJM stated that she could have still appealed within the 4 months of receiving the punishment with her chain of command. Upon learning this, she thought she would appeal her punishment again with her chain of command the following week. However, she had been trying to overcome the Article 15 and subsequent punishment and to keep a positive attitude. The distress she had endured as a result of this punishment adversely impacted her physical performance and on 28 Feb 2013, she failed her Fitness Assessment. On 18 Mar 2013, she received a Letter of Reprimand (LOR) for the failure. She believed the LOR rendered her ineligible to appeal to her chain of command as the attempt would have been futile. She unequivocally accepts accountability for her wrong doing and is not pointing fingers or attempting to deflect total blame onto others. The punishment she received would have been warranted had the unaccounted amount resulting from her failing to account for the fund cites amounted to $32,636.07. However, the unaccounted amount she was responsible for was $2,086.47. She asks the Board to consider changing the punishment to a forfeiture of pay or to mitigation. While this action would cause a loss of 2 years and 3 months time in grade, it would allow her to retire in the rank of Technical Sergeant (TSgt, E-6). In the remaining 5 years until retirement, the money she will have lost as a SSgt equates to roughly $36,000, which exceeds the $32,636.07 she was held accountable for. The Article 15 she received in not unjust; however, the punishment is harsh. ________________________________________________________________ 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 an error or injustice. We took notice of the applicant's complete submission, to include her rebuttal response, in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has failed to sustain her burden of proof of the existence of an error or injustice. Although, the applicant believes the punishment she received as a result of the Article 15 was too harsh, grossly unfair and disproportionate to the offense, she had the option of appealing her punishment to the commander. However, she made a conscience decision not to. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in 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 this application in Executive Session on 7 Nov 2013, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-00538: Exhibit A. DD Form 149, dated 25 Jan 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 1 Mar 2013. Exhibit D. Letter, SAF/MRBR, dated 8 Mar 2013. Exhibit E. Letters, Applicant, dated 16 Mar 2013, w/atchs and 7 Apr 2013, w/atchs. 1 2