RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02323
		INDEX NUMBER:  126.00; 133.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on her on 10 Mar 03 be set aside and all property, rights, and privileges of which she was deprived be restored, i.e., reinstatement to grade of master sergeant (MSgt) (E-7) with original date of rank (DOR) and payment of all back pay and allowances.

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APPLICANT CONTENDS THAT:

She was punished under Article 15 for violation of the Uniform Code of Military Justice (UCMJ), Article 132, for falsely identifying the landlord on a residential rental agreement and only identifying herself as tenant when she was, in fact, one of the landlords and for violating Article 121, stealing, by false pretenses, the property of the United States in the amount of $17,000.  Based on Comptroller General Decision B-201478, OM, dated 7 Aug 81, she was allowed to rent her own rental property.  The charge of larceny against her makes no sense because she was reimbursed by the Air Force, after she was given the Article 15, for the entire amount claimed for perdiem for the rental property.  She references a statement from the pay officer at the base she was assigned she believes should be proof that she had no reason to commit fraud. 

During the investigation conducted on her, no one bothered to investigate the question of whether she was allowed to rent her own property.  Her Area Defense Counsel is the person who contacted the Defense Accounting and Finance Service (DFAS) and obtained the Comptroller General decision.  However, he received the decision after she had appealed the Article 15.  She used the Comptroller General decision in a second appeal.  However, her appeal was denied and she feels her commanders are continuing to punish her for charges she has proven to be innocent of.

The arrangement to rent her property was cheaper for the government than the charges they were previously paying.

She was kept on active duty an additional four months while the investigation of her was conducted.

In support of her appeal, the applicant provides copies of statements from the OSI investigation conducted on her, the Article 15, lease agreement, and other documents.

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

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STATEMENT OF FACTS:

The applicant is a Reservist who was recalled to active duty on 14 Dec 01 for a period not to exceed one year.  She was assigned to Peterson AFB, Colorado, the same state in which she resided, but not within commuting distance.  While on duty at Peterson AFB, she initially stayed in contract quarters at a local hotel and was paid for her lodging costs through monthly vouchers.  On 14 Dec 01, the applicant entered into a purported lease agreement with her husband to rent a home he owned.  In Aug 02, the finance office learned that the applicant owned the home she was leasing and believing the vouchers filed by her to be improper informed her commander.  Subsequently, the Air Force Office of Special Investigation (OSI) conducted an investigation from 7 Oct 02 to 20 Dec 02 into whether the applicant committed frauds against the United States Government.  The applicant was indefinitely extended by the special court-martial convening authority for the purpose of possible disciplinary action.  The OSI investigation disclosed indications of misconduct and the report was forwarded to the commander for a report of action.  On 24 Feb 03, the applicant’s commander offered her proceedings under Article 15 of the UCMJ for alleged violations of Article 132, making multiple false claims for payment between 14 Dec 01 and 16 Oct 02 and Article 121, stealing $17,000 from the government.  On 27 Feb 03, after consulting counsel, the applicant waived her right to trial by court-martial and accepted proceedings under Article 15.  She submitted a written presentation and made a personal appearance before her commander.  On 10 Mar 02, the commander determined the applicant had committed the alleged offenses.  Punishment consisted of a reduction to the grade of technical sergeant    (E-6).  The applicant appealed the punishment and on 3 May 03, the appeal authority denied her appeal.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  Despite the applicant’s protestations of innocence, they perceive no material doubt as to the applicant’s guilt.  The commander had ample evidence to find the applicant committed the offenses charged.  The applicant raises as support for her position the payment of vouchers by the Air Force, a Comptroller General decision from 1981, and advice she received from a civilian employee who apparently worked in the budget office at Peterson AFB and briefed activated reservists on their allowances for perdiem and lodging costs.  They find none of this evidence persuasive.  Regarding the voucher payments, there is insufficient evidence of what post-discovery actions the pay office took or did not take in terms of further voucher payments or recoupment.  Regardless, the applicant submitted false vouchers, by all appearances knowingly, and was paid money on that basis to which she was not entitled.  Based on her circumstances, she may have been entitled to claim certain lodging expenses, but this is not what she submitted to the pay office.

The Comptroller General decision seems to authorize some monthly expenses in circumstances like the applicant’s.  However, the applicant never told the finance office that she owned the home, which would have allowed them to properly calculate the applicant’s bona fide expenses.

Although the applicant asserts she acted in good faith, it was her commander’s responsibility to assess the strength of her explanations.  The commander’s determinations were no unreasonable or clearly unfair justifying a set aside.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 Sep 04 for review and comment within 30 days.  To date, a response has not been received.

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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.  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 opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note the applicant’s arguments that the Comptroller General decision she references and the payment of funds by the Air Force to her since she received the Article 15 should exonerate her of the charges contained in the Article 15.  However, we are not persuaded by the evidence of record this is the case.  We have unresolved questions regarding the lease agreement she signed and of what payments she has received versus what she has actually been determined to be entitled to.  Should additional information be submitted shedding more light on this situation, we may be willing to reconsider her request.  However, at this time, we find insufficient basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number BC-2004-02323 in Executive Session on 19 October 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 26 Aug 04.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Sep 04.