RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04599

   						COUNSEL:  

						HEARING DESIRED:  YES

APPLICANT REQUESTS:

1.  Her nonjudicial punishment, the Article 15 under the Uniform Code of Military Justice (UCMJ) she received on 20 Mar 15, be declared void and removed from her record. 

2.  Her referral Officer Performance Report (OPR) covering the period 23 Mar 14 through 8 May 15 be declared void and removed from her record, and/or the referral comment in the OPR be removed from the report.  

APPLICANT CONTENDS:

The Article 15 she received for dereliction of duty and making a false official statement was unjust and not supported by the evidence of record.  She received NJP for violating UCMJ Articles 92, 107, and 133.  Her appeal was partially granted by the 3 AF/CC when he removed the Article 133 charge.  However, regarding the charge that she made a false statement when she entered remarks into the LeaveWeb cancellation stating she was not taking a trip to Sydney “or words to the affect,” she did not make that statement or enter it into the LeaveWeb.  Her exact comment on the LeaveWeb was “Not taking trip these dates.”   That statement is completely true.  When she attempted to complete her leave return upon returning from leave, she could not do so because the leave request was still in “pending” status.  Because her start and end dates needed to be modified, and LeaveWeb does not allow a new request with overlapping dates with an existing request, she had to cancel the original request before she could enter the correct one.  She simply forgot to reenter the new leave information.  Not until she saw the Report of Inquiry (ROI) from the Office of Special Investigation (OSI) did she realize she never re-entered the new request.  There is quite a difference where intent to deceive is concerned between saying I am not taking a trip (i.e. at all) and saying I am not taking a trip on particular days.  The former statement, the one that was created and used on the NJP, paints a different picture than the official statement I actually made, and the incorrect statement asserted in the NJP was the basis for the NJP decision.  The charge of dereliction of duty amounts to negligence on my part, but not intent, and using NJP for an administrative oversight does not seem fair.  

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

STATEMENT OF FACTS:

The applicant served in the rank of Major, and was stationed in Naples, Italy during the matter under review.

On 20 Mar 15, the applicant’s commander issued her NJP for violating Articles 92, 107, and 133 of the UCMJ for the following reasons:

a.  (Article 92) Between on or about 27 Nov 13 and 29 Jul 14, she was derelict in her duties on diverse occasions, in that she negligently failed to enter leave approved on an AFSOUTH Form 45 into the LeaveWeb as it was her duty to do.

b.  (Article 107) With intent to deceive, made a false official statement when she cancelled leave in LeaveWeb stating, to wit, “I cancelled the leave to reschedule the trip to Sydney,” or words to that effect, which was known by her to be false.  

c.  (Article 133) Wrongfully and dishonorably make a false statement when she cancelled leave in LeaveWeb. 

For this, she was punished by forfeiture of $1,837.00 pay per month for two months, with one month forfeiture suspended, and a reprimand.  

On 5 Nov 15, the applicant was issued a referral OPR covering the period 23 Mar 14 through 8 May 15, on which her additional rater included the comment, “Made an official statement with intent to deceive & failed to enter approved leave in LeaveWeb; received an Art 15.” 

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and D.    

AIR FORCE EVALUATIONS:

AFLOA/JAJM recommends denial of the applicant’s request to declare her Article 15 void and remove it from her record, indicating there is no evidence of an error or an injustice.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. Members who wish to contest their commander's determination of guilt or the severity of the punishment imposed may appeal.  The appeal is reviewed first by the imposing commander, and then by an appellate authority who is a superior officer in the chain of command.  After the commander has made a decision and the appellate process has been exhausted, two independent legal reviews are performed on all Article 15 actions.  

Relevant facts of the case include:

	a.  The applicant’s NJP was supported by a Report of Investigation (ROI) prepared by the Air Force Office of Special Investigations (AFOSI).  That investigation revealed that, during her assignment at Joint Force Command Naples, the applicant had to coordinate leave requests between NATO and Air Force systems by obtaining authorization on an AFSOUTH Form 45 and then entering her leave request into LeaveWeb.  She obtained authorization on an AFSOUTH Form 45, and entered a leave request in LeaveWeb, for a proposed trip to Australia on 3-21 Feb 15.  She entered Australia on 4 Feb 15 and departed Australia on 22 Feb 15.  She canceled her leave request in LeaveWeb upon her return, on 24 Feb 15, and annotated in LeaveWeb, “Not taking trip these dates.”  After cancelling that leave request, she did not submit another request for the actual dates she went to Australia.  On another occasion, the applicant said she could not attend a commander’s call because she was on leave (from 23-29 July 2014), but no corresponding leave request was ever submitted in LeaveWeb.

	b.  On 30 Mar 15, the applicant appealed the NJP action and punishment asserting through counsel that the wording of the NJP was defective in that it did not provide adequate notice of the offense charged, and the evidence supporting the NJP was not legally sufficient.  The applicant’s commander denied her appeal, the Appellate Authority dismissed the allegation she violated Article 133 of the UCMJ, but concurred with the applicant’s commander’s decision to file the NJP in her Officer Selection Record (OSR).  A legal review was performed by the servicing Staff Judge Advocate (SJA), as well as by the General Court-Martial Convening Authority SJA, and both found the NJP legally sufficient.

c.  On 30 Jun 15, the applicant requested removal of the NJP from her OSR.  In support of her request, she provided two character letters, from two Colonels (O-6).  Both Colonels opine that NJP was appropriate, but they support removal of the NJP from the applicant’s OSR based on her outstanding performance, attitude and professionalism following the imposition of NJP.  

d.  On 27 Jul 15, the applicant requested the NJP be set aside.  In support of her request, she provided a letter from a third Colonel who opined the false statement quoted in the NJP is not accurate.  The applicant’s records in the Automated Military Justice Analysis and Management System (AMJAMS) indicate her requests for NJP removal from her OSR and set aside were denied.

The imposition of the applicant’s NJP was legally sufficient.  The evidence demonstrates the applicant failed to properly enter a leave request in LeaveWeb for her trip to Australia, after cancelling her initial leave request upon her return from that trip.  She also failed to enter a leave request in LeaveWeb for 23-29 Jul 14, when the applicant advised she would not be attending commander’s call because she was on leave.  The evidence also supports that the applicant made a false official statement when she cancelled leave in LeaveWeb.  The charge provides she made a false official statement, “to wit: ‘I cancelled the leave to reschedule the trip to Sydney,’ or words to that effect …”  The actual statement that appears on the LeaveWeb print-out is “Not taking trip these dates.”  The use of the phrase “or words to that effect” in the charge provides sufficient latitude to encompass both statements.  As alleged, both statements adequately capture the applicant’s intent to cancel the leave in LeaveWeb as not having completed the leave, after she already had returned from her trip to Australia.  The fact remains she never entered another leave request to properly account for the days she actually went to Australia.  Moreover, her claimed difficulties in accessing LeaveWeb provide no defense as she clearly had no problems in initially entering her leave request for the Australia trip, and subsequently cancelling it, in LeaveWeb.  

Recommend denial of the relief requested as there is no apparent error or injustice in the NJP.  The applicant was afforded all procedural due process rights during the NJP proceedings.

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

AFPC/DPS2PE recommends denial of the applicant’s request to void and remove her referral OPR from her record, indicating there is no evidence of an error or an injustice.  AFI 36-2406, Officer and Enlisted Evaluation Systems, states the Evaluation Reports Appeal Board (ERAB) was established to provide all Air Force personnel with an avenue of relief for correcting errors or injustices in evaluations at the lowest possible level.  If an evaluation cannot be corrected under Table 10.2., Correcting Minor Errors on Evaluations, an applicant's first avenue of relief for correcting an evaluation is through the ERAB, which is accessible via the vMPF/vPC-GR.  An applicant's second, and last, avenue of relief is via the Air Force Board for Correction of Military Records (AFBCMR).  The AFBCMR will not consider a case until all avenues of administrative relief (i.e. the ERAB) have been exhausted.  Recommend denial as the applicant did not exhaust all available avenues of administrative relief prior to seeking correction of their military records.

A complete copy of the AFPC/DPS2PE evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of the applicant’s request she submitted a rebuttal response to the Air Force evaluations, reiterating her contention the statement she made on the LeaveWeb was not false.  She points out she did have difficulty initially entering her leave request, and had access issues on numerous occasions.  She indicates an unbiased IG investigation would have asked the people they interviewed whether or not they were aware of the difficulties the applicant had in entering her leave.  Further, she contends that not long after her NJP a Lt Col was given lesser punishment than she (a Letter of Reprimand) for Basic Allowance for Housing (BAH) issues which were on going for two years, and unlike her situation, the leadership made the member aware of the discrepancies right away.  Many of the contributing factors and details seem to have been missed in her case, and the facts just don’t add up to an officer stealing leave.  Finally, concerning the whole person concept and handling issues at the lowest level that we preach in the Air Force, neither were afforded to her.  She has held Top Secret/Specially Compartmentalized Information (TS/SCI) clearances for three different assignments, and her clearance was granted for each of these.  Those assessments were much more comprehensive and conclusive than what was presented by the Government as evidence in her case.  (Exhibit F)  

THE BOARD CONCLUDES:

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 in judging the merits of the case; however, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice concerning her NJP under Article 15 of the UCMJ.  Further, while we note the comments of AFPC/DPS2PE indicating relief should be denied because the applicant failed to exhaust all available avenues of administrative relief prior to applying to the AFBCMR, the Board’s decision to deny the applicant’s request to void and remove her NJP eliminates the basis for her request concerning her OPR as well as the requirement to apply to the ERAB.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2015-04599 in Executive Session on 20 Oct 16 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 16 Oct 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 26 May 16.
	Exhibit D.  Memorandum, AFPC/DPS2PE, dated 2 Jun 16.
	Exhibit E.  Letter, SAF/MRBR, dated 9 Jun 16.
	Exhibit F.  Letter, Applicant, dated 6 Jul 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.