RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02572 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. Void and remove his Letter of Reprimand (LOR), dated 7 July 2010 and any references thereto from his official military personnel record. 2. Redact his Officer Performance Report (OPR) with the close- out date of 11 August 2010 to eliminate any references to the LOR, referral report, or contracting improprieties. 3. Void and remove the Article 15, Uniform Code of Military Justice (UCMJ) punishment, dated 26 May 2011, and any references thereto from his official military personnel record. 4. Redact the OPR with the close-out date of 11 August 2011 to eliminate any references to the Article 15, referral report, or the improper transport of pets on military aircraft. 5. He be promoted to the rank of lieutenant colonel (O-5) with full back pay and allowances. ________________________________________________________________ _ APPLICANT CONTENDS THAT: The imposed punishment, as a result of the LOR, Article 15, and referral OPRs; has served its intended purpose and the removal of these records would serve in the best interest of the Air Force. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is currently serving as a pilot on active duty in the Regular Air Force in the grade of major (O-4). An investigation by the Office of Special Investigations (OSI) revealed the applicant falsified information while participating on the source selection board for the MacDill AFB Bird/Aircraft Strike Hazard (BASH) Program contract. As a result, he received an LOR for improper contracting procedures, which is a criminal offense under Article 92, 133, and 107 of the UCMJ. He was also given an Unfavorable Information File (UIF) and a subsequent referral OPR closing for the period 12 August 2009 through 11 August 2010. His referral OPR commented upon him receiving an LOR during the reporting period for improper contracting procedures. On 26 May 2011, the applicant was offered nonjudicial punishment under Article 15, UCMJ for being charged with one specification of dereliction of duty, in violation of Article 92, UCMJ, in that he transported seven pets, including four dogs, two cats, and a rat on board a KC-135 mission from MacDill Air Force Base (AFB), Florida to Joint Base Pearl Harbor-Hickam, Hawaii. The applicant was afforded the opportunity to consult with defense counsel, accepted the Article 15, and waived his right to demand trial by court-martial. He elected to present written matters and made a personal appearance before the commander. On 13 June 2011, the 13th Air Force Commander decided that the applicant had committed the offense and imposed punishment consisting of a forfeiture of $1,500 pay per month for two months and a reprimand. The applicant appealed the commander’s decision; however, on 22 June 2011, his appeal was denied. The Article 15 action was reviewed and determined to be legally sufficient. The applicant received another referral OPR for the period 12 August 2010 through 11 August 2011 for violating Article 92 of the UCMJ; specifically for dereliction in the performance of duties for willfully failing to make reasonable efforts to verify that transportation of his seven pets on a military aircraft was authorized, and willfully failing to undergo normal processing procedures that would have prevented such transportation. The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluations by the Air Force offices of primary responsibility at Exhibits C through F. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant does not allege error in how the Article 15 was processed. A review of the Air Force Form 3070, Record of Nonjudicial Punishment Proceedings, indicates his rights were observed throughout the process of the Article 15. The commander, at the time of the Article 15, had the best opportunity to evaluate the evidence in the case. The applicant raised the same arguments in his defense of the Article 15 with his commander, and with his commander’s superior on appeal. The commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found nonjudicial appropriate in this case. Moreover, the commander’s decision was scrutinized by the applicant’s exercise of his right to appeal. It is notable that in the applicant’s appeal, he apologized to the commander for his actions acknowledging the harm they cause to the good order and discipline of the Air Force. Further, he wrote that he did not believe the punishment imposed was “unfair or unnecessarily harsh.” In his appeal, he simply asked the 13th Air Force Commander to suspend the punishment, so that he may have another opportunity to prove himself. The legal review process showed that the commander did not act arbitrary or capriciously in making his decision. The applicant does not make a compelling argument that the Board should overturn the commander’s original, nonjudical punishment decision on the basis of justice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. The complete JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denying the applicant’s request to permanently remove his LOR and Unfavorable Information File (UIF). There is no evidence that indicates the commander inappropriately processed the applicant’s LOR or UIF. The commander was well within his authority to take disciplinary action as he saw fit. Additionally, the evidence indicates the actions were documented as required by the Air Force Instruction (AFI). In accordance with AFI 36-2907, paragraph 1.9, the commander may remove a UIF and its documents when early removal is clearly warranted. It is apparent in this case that the commander did not consider early removal, as was his prerogative. The complete DPSIM evaluation is at Exhibit D. AFPC/DPSID states that based on the legal sufficiency pertaining to the issuance of the LOR/UIF and Article 15 punishment, they recommend denying the applicant’s request to void and remove the contested OPRs. The applicant has not provided compelling evidence to show that the reports are unjust or inaccurate as written. To void these reports would remove the accountability of the applicant for the offenses he committed. The complete DPDIS evaluation is at Exhibit E. AFPC/JA recommends denial. JA states they concur with the other advisories and write only to add further comment. In the counsel’s brief, she initially tells the Board that the LOR, Article 15 punishment, and referral OPRs that the applicant received had served their intended purpose, and that removal of these documents from the record would “serve the best interest of the Air Force.” She refers to the documents’ continued presence as “unjust,” and at the conclusion of the brief, she requests the Board “right the wrong that has been done to him in the interest of justice and equity…” This argument would suggest that the applicant is seeking relief on the basis of injustice rather than error. Yet the bulk of the brief is spent arguing the sufficiency of the evidence to support those adverse actions; i.e., applicant argues error, claiming that a preponderance of evidence does not support the allegations of wrongdoing underlying the two incidents that formed the basis for the LOR, Article 15, and OPRs. In fact the applicant’s theory is that all others are primarily to blame for the misconduct that occurred, and that he was a victim of these other persons’ wrongdoing. Suffice to say, the evidence in both instances is more than sufficient to support the adverse actions and referral OPRs. While others may have had a role, the applicant’s culpability has been fully established. If nothing else, common sense would dictate that the applicant’s actions in disclosing contract source selection information, showing obvious favoritism in steering the contract award and, falsifying an official document by backdating the Source Selection Briefing Certificate, were wrongful-showing poor judgment, lack of integrity, and poor “officership.” Likewise, the applicant’s culpability regarding the unauthorized shipment of pets on a government aircraft was clearly proven by a preponderance of evidence, as discussed in the AFLOA/JAJM advisory. The applicant has also failed to establish that the continued presence of the contested documents in his record constitutes an injustice. What the evidence does establish is that the applicant committed acts of wrongdoing, that the adverse actions taken in response thereto were proper and appropriate, and that his continued refusal to take responsibility for his actions belies any notion that he has learned from his mistakes and should have his military record cleared. In short, the applicant has proven neither an error nor injustice in his appeal. The complete AFPC/JA evaluation is at Exhibit F. ________________________________________________________________ _ COUNSEL'S REVIEW OF AIR FORCE EVALUATIONS: Request the Board disregard the advisory opinions and grant the requested relief. Assuming the purpose for the advisory opinions is to provide the Board with an analysis by subject matter experts, the provided opinions fail in that regard. It appears the authors did not conduct any analysis, review the evidence in the case, or even engage in critical thinking. They merely state the incorrect premise that the regulations allow commanders unfettered discretion in offering disciplinary action, the commanders are always right, and if the action had a legal review, then it must be legal. The fact that the Board exists to exercise independent discretion in reviewing commander’s and legal advisor’s actions reflects the reality that abuses of discretion do occur. Commanders are not judges, may not have much experience in meting out discipline, and may not understand how to weigh evidence or what is meant by the burden of proof. It is painfully evident in her client’s case that he received disciplinary action not because he committed criminal infractions, but because he inadvertently embarrassed the command. He should not have been found guilty of a dereliction of duty because to the extent he had a duty; he acted as a reasonable prudent person. In consideration of the applicant’s stellar duty performance, to utilize this severe of a punishment and irreparably damaging his career doesn’t make sense. Charges should be selected and drafted to reflect misconduct, not to punish mistakes or misunderstandings. The circumstances that led to his LOR and Article 15 were the result of a rush to judgment and an attempt to blame him for what in reality were systemic failures to follow procedures and to adhere to established standards. The contested documents should be removed from her client’s records as being unjust, erroneous, and not in the best interest of the service member or the United States Air Force. The Counsel’s complete rebuttal is at Exhibit H. ________________________________________________________________ _ 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 an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant’s contentions that the LOR, Article 15 punishment, and referral OPRs have served their intended purpose and that removal of these documents from the record would “serve the best interest of the Air Force;” however, we are not persuaded by the evidence and counsel’s arguments that the actions taken against the applicant in this case were arbitrary, capricious or not a reasonable response to the applicant’s offenses. While the impact of these actions on the applicant’s career may be regrettable, we do not find the actions serve to make the applicant the victim of error or injustice. Therefore, in the absence of evidence to the contrary, we do not find it in the interest of justice 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 issues 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 AFBCMR Docket Number BC-2012-02572 in Executive Session on 29 May 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2012-02572: Exhibit A. DD Form 149, dated 29 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 16 Jul 12. Exhibit D. Letter, AFPC/DPSIM, dated 9 Jan 13. Exhibit E. Letter, AFPC/DPSID, dated 24 Jan 13. Exhibit F. Letter, AFPC/JA, dated 8 Feb 13. Exhibit G. Letter, SAF/MRBR, dated 14 Feb 12. Exhibit H. Letter, Counsel, dated 28 Feb 13.