RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01226 XXXXXXX COUNSEL: XXXXXXXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Nonjudicial Punishment (NJP) imposed on 5 Jan 11, be set aside; and all entries and references related to the allegations be removed from his official military record. 2. The adverse comment in Section V, Additional Rater Overall Assessment, and the mark of “Does Not Meet Standards” under Section IX.5, Performance Factors, be removed from his referral Officer Performance Report (OPR) for the period 7 Jun 10 thru 6 Jun 11. 3. He be restored of all pay, allowances, entitlements, rights and privileges, affected by the 5 Jan 11 NJP and Referral OPR. ________________________________________________________________ APPLICANT CONTENDS THAT: He was not willfully or negligently derelict in his duties as his claims for reimbursement related to taxi expenses were made because he understood he was entitled to receive reimbursement. The word negligently means “an act or failure to act by a person under a duty to use due care, demonstrate a lack of that degree of care which a reasonably prudent person would have used under the same similar circumstances.” He was never told not to make these types of claims. A reasonable person would not know these types of claims could not be reimbursed. In his squadron, there were no definitive guidelines provided regarding the use of taxis, and had he been provided this guidance he would not have broken the rules. No one ordered or requested that he “refrain from claiming reimbursements” for taxi expenses. In order to be found guilty of dereliction of duty it must be shown that he reasonably should have known of his duty. He appeared before his commander for disciplinary proceedings under Article 15, Uniform Code of Military Justice (UCMJ) and was charged with, and found guilty of, two violations of Article 92: (1) dereliction of duty by willful failure to refrain from claiming reimbursement for taxi expenses, and (2) dereliction of duty by negligent failure to refrain from claiming reimbursement for taxi expenses. The punishment imposed was forfeiture of $2,174.00 pay per month for two months (forfeiture in excess of $1,000.00 pay per month for two months, was suspended); and a reprimand. He appealed his NJP and his commander granted his appeal in part, by: (1) dismissing the charge of willful dereliction of duty; (2) set aside the forfeiture of pay; and (3) deleted the sentence “Willfully filing claims for taxi expenses you did not incur has caused your superiors to question the trust placed in you.” His Area Defense Counsel (ADC) submitted a request to terminate his promotion delay and his request was granted, and the applicant was promoted to the grade of captain with an effective date of 26 Jan 11. According to the Joint Federal Travel Regulations (JFTR) anyone in a similar position and upon similar evidence, would have reasonably believed that taxi transportation such as the taxi transportation he took during official military travel/missions, were legitimate expenses and reimbursable. Therefore, there would be no duty to refrain from claiming reimbursements for these expenses. The original allegation of willful dereliction of duty from o/a 13 Jan 10 and o/a 10 Oct 10 is inclusive within the allegation of negligent dereliction of duty from o/a 6 Feb 09 and o/a 10 Oct 10; therefore, these offenses were unreasonable and a multiplication of charges against him. Before and during the time of his Temporary Duty (TDY) assignments, there were no definitive guidelines provided regarding the use of taxis for ground transportation. It was not until approximately 9 months after his NJP that specific guidance was developed and distributed regarding filing travel claims for “unauthorized taxi reimbursement.” Clearly, had he been provided this guidance before executing assignment orders, it is highly unlikely he would have faced dereliction of duty allegations and subsequent disciplinary and administrative adverse action. His extraordinary performance and service to the Nation and United States Air Force cannot be overlooked. He clearly understands the need for the scrutiny of any issue that would question a military member’s conduct; however, his service far outweighs any negative aspect presented. His life and career encompassed more than just the allegations, and do not reflect who he is as a person and officer. In support of his request, the applicant provides a 12-page counsel’s brief, his sworn testimony, witness statements, documents pertaining to his NJP, character statements, documents extracted from to his military personal records, and various other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 16 Dec 10, while serving in the grade of first lieutenant, the applicant was offered NJP under Article 15 of the UCMJ for alleged violations of Article 92. The applicant was charged with one specification for being derelict in his duties for willfully failing to refrain from claiming a reimbursement for taxis from 13 Jan 10 until 10 Oct 10, and one specification for being derelict in his duties by negligently failing to refrain from claiming taxi expenses from 6 Feb 09 until 10 Oct 10. A Commander Directed Investigation (CDI) resulted from evidence of the applicant claiming numerous taxi rides for personal convenience while TDY. This investigation revealed the applicant claimed unauthorized taxi expenses on multiple travel vouchers beginning in Feb 09 and lasting until 10 Oct 10. 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 did not elect to make a personal appearance before his commander. In his response, the applicant stated he was not willfully or negligently derelict in his duties by claiming these taxi expenses as he was never told he needed to refrain from claiming these expenses and when he asked others, he was told that he could claim these expenses. Additionally, when he filed his travel vouchers, all of these expenses were approved. All of these expenses were mission related and there is no evidence that proves he or any other reasonable person would believe they could not claim these taxi expenses. On 5 Jan 11, the 18th Air Force Commander (18AF/CC) decided that the applicant had committed the offenses and imposed punishment consisting of a forfeiture of $2,174.00 pay per month for two months, with forfeitures in excess of $1,000.00 pay per month for two months suspended, and a reprimand. The applicant appealed the decision to the 18AF/CC and submitted matters in writing. On 4 Feb 11, his appeal was denied. On 5 Mar 11, Air Mobility Command Vice Commander (AMC/CV) granted the applicant’s appeal in part, by lining out the willfully dereliction of duty specification, changed the forfeiture to $1,000.00, and lined out a portion in the reprimand related to the willful filing of the claim for the taxi expenses. The Article 15 action was reviewed at two separate legal levels and was determined to be legally sufficient. A resume of the applicant’s Officer Performance Reports follows: Closeout Date Overall Rating 6 Jun 09 Meets Standards 6 Jun 10 Meets Standards * 6 Jun 11 Does Not Meet Standards 27 Dec 12 Meets Standards * Contested referral OPR. The applicant was marked as not meeting standards in Section IX, Item 5, “Judgment and Decisions.” Comments regarding his Article 15 were made in Section V. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the Article 15 from his records. The applicant has not shown a clear error or injustice. A commander considering a case for disposition under Article 15 exercises largely unfettered discretion in evaluating the case, both as to whether punishment is warranted and, if so, the nature and extent of punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal or by the Board absent good cause. A set aside of punishment should not routinely be granted. Rather, set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interests of the Air Force would be served. The applicant alleges injustice in that he was not negligent in the dereliction of his duty to refrain from claiming taxi expenses. It was his understanding, as well as others in his squadron, that these types of expenses were reimbursable. These claims were always paid after being reviewed, which furthered his belief that it was allowable and authorized to claim these expenses. There were no guidelines in his squadron on taxi expenses and the applicant was never told or trained that these expenses were not authorized. All of this information was provided to the applicant’s commander and appellate authority at the time of the NJP. During the processing of his NJP, the appellate authority agreed partially with the applicant and found he did not willfully fail to refrain from claiming these expenses, but did still agree that he negligently failed to refrain from claiming the expenses. The commander and appellate authority looked at all the evidence, to include submissions from the applicant, and found he was guilty. The applicant does not make a compelling argument that the Board should overturn the commander’s original NJP decision on the basis of injustice. The commander’s ultimate decision on the Article 15 action is firmly based on the evidence of the case and the punishment was well within the limits of the commander’s authority and discretion. The complete JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to remove the adverse comment in Section V, and the marking that “Does Not Meet Standards” from his OPR closing 6 Jun 11. DPSID states based on the lack of corroborating evidence provided by the applicant, and the presumed sufficiency pertaining to the issuance of the Article 15, they recommend the report not be modified or removed from his record. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36- 2401, Correcting Officer and Enlisted Evaluation Reports. In accordance with (IAW) AFI 36-2406, Officer and Enlisted Evaluation Systems, Paragraph 1.3.1., evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15’s, Letters of Reprimand, Admonishment, Counseling, or placement on the Control Roster have been taken. The rating chain appropriately chose to comment and document on the underlying misconduct, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. The applicant provided no evidence within his case to show that the referral comment on the OPR was in anyway inaccurate or unjust. DPSID contends that the inclusion of the comment on the referral OPR was appropriate and within the evaluator’s authority to document given the incident. The applicant provided witness statements supporting his claim of lack of training and knowledge of the Defense Travel System (DTS) travel vouchers; however, after a CDI, the applicant was ultimately found to be in violation of Article 92 of the UCMJ. Therefore, the comments referencing the behavior and the punishment received on the contested referral report is fair, accurate and IAW with AFI 36-2406 instructional guidance. Concerning the applicant’s request to have the contested report modified, he has made a prohibited request by failing to provide a re-accomplished OPR, along with signed memorandums of support/justification from the original evaluators at the time. The governing directive states that appeals requesting to re- accomplish an evaluation will not be considered without the applicant furnishing a new evaluation. The ERAB will not consider nor approve requests to change an evaluator’s rating or comments if the evaluator does not support the change and the Board should assert the same requirement as to not circumvent the evaluators which bear the responsibility of making a fair and equitable assessment at the time the report was written. An evaluation report is accurate as written when it becomes a matter or record. It is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The burden of proof is on the applicant and he has not substantiated that the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant affirms his request for a full, fair and impartial review of his case. His position remains without change, and respectfully requests that the relief sought, be granted. The applicant believes that his leadership recommended that he be found guilty to the 18 AF/CC who, without a second thought, found him guilty on both counts. He feels they failed to look at the actual facts of the case, even after an appeal, which was immediately denied. It was not until the AMC/CC looked at the documents provided that a sensible ruling was made to overturn the most serious charge. Prior to the NJP of 5 Jan 11, his record was not only spotless, it was exemplary. His personal and professional conduct has been beyond reproach. His immediate supervisors have all personally vouched for him to include a “non-concur” on his referral OPR. There was no specific guidance on taxi charges, so there was no duty to refrain from claiming reasonable expenses. Given the circumstances, he was filing travel vouchers to the best of his abilities, for reasonable taxi expenses for food when no suitable food was available within walking distance. Two years of travel vouchers were reviewed and approved with full disclosure. His leadership developed guidance that would make his prior taxi expenses a violation, thereby charging him retroactively for conduct prior to their new rules. The applicant's complete response, with attachment, is at Exhibit F. ________________________________________________________________ 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 note that the applicant’s counsel argues that based on the lack of training and understanding of the policies governing travel expenses in his unit the NJP should be set aside. However, in our view, the Air Force office of primary responsibility and the Air Force Legal Operations Agency have adequately addressed the issues presented by the applicant and we are in agreement with their opinion and recommendation. We find no evidence of an error or injustice that occurred during the NJP proceedings; nor has the applicant provided any evidence which would lead us to believe the NJP was contrary to the provisions of the governing instructions, unduly harsh, or disproportionate to the offenses committed. Since we find no reason to remove the NJP, no basis exists to remove the comments from the contested OPR or to restore pay, allowances entitlements, rights and privileges affected by the NJP. Therefore, in view of the above, we find no basis to recommend granting the requested relief. ________________________________________________________________ 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-2013-01226 in Executive Session on 20 Feb 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Feb 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 11 Apr 13. Exhibit D. Letter, AFPC/DPSID, dated 21 Jun 13. Exhibit E. Letter, SAF/MRBR, dated 5 Aug 13. Exhibit F. Letter, Applicant’s Counsel, dated 3 Sep 13, w/atchs 1 2