RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02816 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His court-martial punishment and the debt imposed by his conviction be set aside. ________________________________________________________________ APPLICANT CONTENDS THAT: His court-martial conviction was a result of a misunderstanding of the Joint Federal Travel Regulations (J.F.T.R) and false testimony. He believes that his conviction and debt in the amount of $28,907.28 was based on a misunderstanding of JFTR, specifically, as to what constitutes “Home of Record (HOR).” Prior to entering a tour of extended active duty (EAD) he changed his HOR to outside the commuting distance of the base and was entitled to per diem. His former girlfriend made false testimony at his court-martial as to whether or not he had changed his HOR, which subsequently led to his conviction. In support of his appeal, the applicant provides a personal statement; copies of extracts from the JFTR, a similar court- martial case, and a letter to the Court-Martial Convening Authority. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 21 June 2010 and l0 - 13 August 2010, the applicant, then a technical sergeant, 'was tried at a general court-martial. The applicant was accused of presenting vouchers to finance personnel for per diem, lodging and mileage expenses that were false and fraudulent, which led to him being paid over $28,000.00 to which he was not entitled. The applicant was eventually charged with one specification of making a false claim against the United States, in violation of Article 132, and one specification of larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ), the applicant pled not guilty to the charges and the military judge dismissed the violation of Article 132 after a defense motion to dismiss for failure to state a claim. He was found guilty of the violation of Article 121 and sentenced to 30 days confinement, forfeiture of all pay and allowance, hard labor without confinement for 60 days, a $1,000.00 fine, and in the event the fine was not paid, to be confined for one month in addition to the adjudged 30 days confinement, and reduction in grade to airman basic. On 17 Dec 10, the convening authority approved only so much of the sentence as provided for 30 days confinement, forfeiture of all pay and allowances, for 23 days, forfeiture of $964.00 pay per month thereafter until 17 Dec 10, a fine of $1,000.00 and to serve additional confinement for one month in the event the fine was not paid, and reduction to airman basic. On 28 Jan 11, the office of The Judge Advocate General examined the record of trial in the applicant's case and found it to be supported in law. ________________________________________________________________ THE AIR FORCE EVALUATION: AF/JAJM recommends denial. In discussing the case, they note, the applicant alleges both error and injustice in his court- martial. His allegation is based on an undisputed interpretation of provisions under the JFTR. When a member of the Air National Guard (ANG) receives orders to come onto training (or seasoning) duty, certain financial benefits, such as per diem and mileage, are based on the applicant's HOR. If the member’s HOR is within commuting distance of the duty location, the member is not authorized these additional benefits. If, however, the member's HOR is outside the commuting distance, the member is entitled to per diem and other additional financial benefits. In the applicant's case, he was on training orders from 28 Jan 08 to 24 Sep 08. At the time, his HOR was within commuting distance, therefore, he did not receive additional financial benefits. After he completed his training, he relocated his home to Grand Blanc, Michigan, which was outside the commuting distance. The applicant subsequently received training orders and claimed, rightfully, he says, additional financial benefits since his HOR was now outside the commuting distance. In addition, the applicant also points out that he maintained a separate residence closer to base, which the JFTR allows. He states that his case revolves around the understanding and misunderstanding of the JFTR. While there was not really a misunderstanding regarding the provisions of the JFTR, an expert witness testified at trial as to the provisions of the JFTR and there was no dispute about whether the applicant would have been entitled to the benefits if his HOR was truly as he claimed. In this case, the fact is the residence that he claims as his HOR belonged to someone that he claims was his former girlfriend; however, she testified that they never dated and that he never lived at her residence. He believes she lied because of jealousy over his new girlfriend. The question in the applicant's case is not of law as he alleges, but one of fact. His alleged former girlfriend testified that she did not date the applicant and he never lived at her residence. On cross-examination, the defense pointed out inconsistencies in the alleged former girlfriend’s testimony. The members were faced with a question of which version of events to believe. During closing arguments, defense argued the alleged girlfriend was lying because she had a grudge against the applicant. In finding the applicant guilty of the offense of larceny, it is clear that the members found her version of events to be credible. A review of the Record of Trial (ROT) shows sufficient evidence to support the members' finding of guilty. While her testimony showed some inconsistencies, there was no inconsistency in her assertion that the applicant had not lived at her residence with her. The information the applicant now provides about her being jealous because of another girlfriend was not before the members because the applicant did not testify. Furthermore, the applicant states this information in his application; however, he does not provide any documentation or other information to support his assertion that she was lying because she was jealous. In addition, the applicant cites the case of United States v. Perry, an unpublished opinion from the Air Force Court of Criminal Appeals. In the cited case, the court relied on the same provisions of the JFTR that are at issue in the applicant’s case. However, the Court found that since the member’s HOR was outside the reasonable commuting distance that the member was entitled to per diem and other benefits and she was not guilty of larceny. In that case there was no factual dispute of the HOR. Contrast that situation with the applicant’s where there was a genuine factual dispute over whether the applicant could claim that residence as his HOR. The complete AF/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: He notes that it appears the government, in its advisory opinion addresses essentially four points, specifically: 1) that there was no misunderstanding of the JFTR involved in this case; 2) that the allegation of his former girlfriend lying on the stand because she was a jealous ex-girlfriend is new and was not provided at trial; 3) that there was no inconsistency in her assertion that he lived with her; and 4) that he has been afforded all of the procedural rights of the court-martial and appellate process and addresses them in that order. He notes the government contends that there exists in this case no misunderstanding of the JFTR by the prosecutors and the jury. However, he noted in his initial application, when the prosecution charged him, it did not understand the distinctions between HOR and residence. As evidence of the government's misunderstanding of the distinction between HOR and residence, the prosecution actually failed to state an offense in one of their charges, which the Military Judge in this case ultimately dismissed. It was with this misunderstanding of the JFTR the government proceeded to trial. The government's misunderstanding can further be seen in their closing argument in which they state that his former girlfriend’s testimony could be completely disregarded and still find him guilty repeatedly implies that a showing of a local residence was proof that Grand Blanc was not the HOR also confused the difference between HOR with residence. He notes that finance officials noted that the JFTR can be understood through, "common sense, common language, and common terms. The JFTR does not have to define everything that is common sense ...HOR is common sense ...." Such arguments were made throughout trial and confused the issue for the jury. This misunderstanding by the members revealed itself plainly when members came back from deliberations and asked to hear portions of finance officials’ testimony, stating, "The portions we are interested in are any of the HOR discussions, as well as entitlements. We feel like we understand the testimony as it pertains to the travel vouchers and the numbers and what are those [sic] associated with and things like that, but we would definitely like to hear the testimony associated with HOR as well as entitlements." It is notable that, at this point, members had already been deliberating approximately two hours. Additionally, the government suggests that the issue of his former girlfriend lying on the stand because she was a jealous ex-girlfriend is new and was not provided at trial. Respectfully, that is incorrect and a review of the previously provided ROT shows this is not a new issue at all. Indeed, this issue has been central to this case from the very beginning, which the government even argued against in its closing argument. Further, a review of the ROT shows that there was evidence produced at trial that she and the applicant were in a relationship (including emails and Facebook messages) and evidence to suggest that they were no longer in a relationship to include her overall demeanor on the stand and unwillingness to talk to defense counsel. So while the government suggests that the reason for the falling out is "new," in truth, this is not new evidence. This brings us to the next issue: The government contends, "There was no inconsistency in her assertion that the applicant had not lived at her residence with her." That is false. In fact, a review of the ROT shows there was written contradicting evidence, to include a United States Post Office Change of Address form, which contradicted that he did not live there. As noted in his initial submission. Finally, what is conspicuously omitted from the government's evaluation is any discussion of the puzzling sentence adjudged in this matter. The applicant references his initial submission that discussed the court member’s doubt regarding his guilt, which he believes is supported by the “startlingly light” sentence he received in view of the offense he is alleged to have committed. The applicant’s complete response, with attachments, 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 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. The applicant goes to great length to call into question the finding of guilt by the court. However, even if we were to find merit in some of the arguments he makes, we do not find that the evidence supports that the final decision of guilty the court reached was not beyond a reasonable doubt. The applicant’s disagreement with the evaluation prepared by AFLOA is not supported by fact, but, rather, the applicant’s uncorroborated assertions. As such, as noted by AFLOA, we believe the applicant was afforded all of the procedural rights offered by the court-martial and appellate process. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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 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-2011-02816 in Executive Session on 10 April 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jul 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 11 Aug 11. Exhibit D. Letter, SAF/MRBR, dated 19 Aug 11. Exhibit E. Letter, Applicant, dated 8 Sep 11, w/atchs. Panel Chair