RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04501 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His retired pay grade of lieutenant colonel be changed to colonel. _________________________________________________________________ APPLICANT CONTENDS THAT: His request is based on the facts that he had attained the rank of colonel and had an outstanding career of service. There was a perceived incident at the end of his career that was misunderstood, exaggerated, and mischaracterized, which resulted in a retired grade determination of lieutenant colonel. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, his separation orders, performance reports, promotion recommendation forms (PRFs), promotion orders, medals, biography, and his career history. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 25 May 1974, the applicant was commissioned as an Air Force Reserve second lieutenant and on 31 July 1974 he entered active duty. He was progressively promoted to the grade of colonel, having assumed that grade effective and with a date of rank (DOR) of 1 December 1994. On 22 November 1996, the applicant received an Article 15 and an Unfavorable Information File (UIF) was established for violation of Article 132, Uniform Code of Military Justice (UCMJ) for Frauds against the United States. The specific reason for this action was: On divers occasions, between on or about 7 October 1995 and on or about 26 June 1996, he prepared Department of Defense Forms 1351-2, Travel Voucher or Subvoucher, for presentation for approval or payment, made claims against the United States in the amount of $5,575.14, which claims were false and fraudulent in the amount of $923.03, in that he unlawfully claimed per diem, lodging, and other temporary duty (TDY) expenses for dates he should have been in a leave status, and was then known by him to be false and fraudulent. His punishment consisted of forfeiture of $2,813 per month for two months and a reprimand. The portion of punishment which extended to forfeitures in excess of $2,351 per month for two months ($462 per month for two months) was suspended until 20 May 1997, at which time it was to be remitted without further action unless sooner vacated. On 25 November 1996, the applicant accepted the Article 15, UCMJ. On 2 December 1996, ALC/JA found it to be legally sufficient. On 17 December 1996, the applicant was notified of his commander’s intent to initiate an officer grade determination (OGD) action, in accordance with (IAW) AFI 36-3203, Service Retirements. On 19 December 1996, the applicant acknowledged receipt of the notification of OGD action and submitted a statement in his own behalf. On 26 December 1996, the Air Force Recruiting Squadron, Judge Advocate (AFRS/JA) reviewed the OGD package, including matters submitted by the applicant, and concluded the applicant should be retired in the grade of lieutenant colonel. In addition, JA recommended the package be forwarded to the Air Education and Training Command commander (AETC/CC) with a recommendation that the applicant be retired in the grade of lieutenant colonel. The AFRS/CC recommended to the AETC/CC that the applicant be retired in the grade of lieutenant colonel. On 2 January 1997, AETC/JA reviewed the case file and found it to be legally sufficient. JA recommended the case file be forwarded to the Secretary of the Air Force (SAF) with a recommendation that the applicant be retired in the grade of lieutenant colonel. On 16 January 1997, AETC/CV recommended to the SAF Personnel Council (SAFPC) that the applicant be retired in the grade of lieutenant colonel. On 27 January 1997, the SAF found the member did not serve satisfactorily in the higher grade of colonel within the meaning of Section 1370(A) (1), Title 10, United States Code. However, the Secretary found the member did serve satisfactorily in the rank of lieutenant colonel, within the meaning of the aforementioned provision of law and directed he be retired in that grade. The Secretary further determined the action did not excuse any indebtedness to the United States government. _________________________________________________________________ AIR FORCE EVALUATION: AF/DPO recommends denial. DPO states IAW AFI 36-3203, the unit commander or other appropriate authority (including an authority designated for this purpose by the SAF or designee) will initiate an OGD if, within two years of the date of the application for retirement, the officer received non-judicial punishment pursuant to an Article 15, UCMJ. The complete DPO evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the advisory from AF/DPO tells only part of the facts. He admits the Article 15 was issued and he voluntarily retired. However, he states the administrative action was taken because an investigation by the Office of Special Investigations (OSI) and Judge Advocate General (JAG) determined that no laws or regulations had, in fact, been violated. That is why no judicial action was taken. In lieu of that, and based solely on the perception of possible wrongdoing, the Article 15 was issued. There was no criminal activity or violation of an Air Force Instruction (AFI) and everything he did was legal, however, the general was concerned about the perception. The applicant’s complete submission 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 an error or injustice. The applicant is requesting that the determination of the Secretary of the Air Force Personnel Council that he did not serve satisfactorily in the grade of colonel be reversed contending that there was a perceived incident at the end of his outstanding career that was misunderstood, exaggerated, and mischaracterized. The applicant also states there was no criminal activity or violation of an Air Force Instruction and states everything he did was legal. He claims that “extensive investigation by the OSI and JAG” found that no laws and regulations were violated by his actions. As such he was given the Article 15, which was the basis for the OGD, solely on the “perception” of wrongdoing on his part. However, the applicant has not presented evidence to corroborate his claims. We note that in the nonjudicial punishment forum, the applicant had the right to refuse punishment under Article 15 and to demand trial by court-martial, to submit matters for the commander to consider and to appeal any punishment that the applicant considered unjust or disproportionate to the offense. The applicant has not provided evidence to show that he was not accorded all his rights when notified of his commander’s intent to punish him under Article 15. As such, we agree with the opinion and recommendation of AF/DPO and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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 AFBCMR Docket Number BC-2010-04501 in Executive Session on 21 and 28 July 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-04501 was considered: Exhibit A. DD Form 149, dated 6 December 2010, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. AF/DPO, Letter, dated 27 January 2011. Exhibit D. SAF/MRBR, Letter, dated 17 June 2011, w/atch. Exhibit E. Applicant’s Rebuttal, dated 15 July 2011.