RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00296

XXXX X. XXXX	COUNSEL: NONE
	
		HEARING REQUESTED: YES 

APPLICANT’S REQUEST

1.  His Officer Performance Report (OPR) for rating period 22 Jan 16 through 21 Jan 17, be voided.

2.  His Promotion Recommendation Forms (PRF) for boards XXXX and XXXX referencing the OPR, be voided. 

3.  His records be considered by a special supplemental promotion board.

APPLICANT’S CONTENTIONS

A Letter of Counseling (LOC) was issued for a perceived misuse of the Government Travel Card (GTC) and a referral OPR was generated in response to the same action.  The statement on his referral OPR “Member received LOC for misusing his Government Travel Card, in violation of Article 92, UCMJ” is not factual or accurate.  In most cases, a verbal counseling would have been used to resolve the issue.  He was not offered proper due process and the event was resolved based off of the rater’s opinion and not the facts.  He states that there was not a written policy prohibiting the action and the action was authorized according to DoDI 5154.31, Volume 4, Government Travel Charge Card Regulations: 040304.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force Reserve major (O-4).

On 30 Mar 18, according to the OPR for rating period 22 Jan 16 through 21 Jan 17, the evaluation was referred due to block III and block IX, Performance Factors, marked “Does Not Meet Standards”, and  block IV, Rater Overall Assessment, with comment “Member received LOC for misusing his Government Travel Card, in violation of Article 92, UCMJ”.

On 9 Apr 20, according to AF Form 77, Letter of Evaluation, for report period 22 Jan 17 through 21 Jan 19, block IV, Comments/Impact on Mission Accomplishment state: “No evaluation available for the period of 22 Jan 2017 through 21 Jan 2019.  No evaluation required according to AFI 36-2406”.

According to AF Form 709, Promotion Recommendation, for Promotion Board XXXX and provided by the applicant, he received an Overall Recommendation of “Do Not Promote This Board.”  In Block IV, Promotion Recommendation, it states “[The applicant] was issued a Letter of Counseling 25 May 2017 for violating Article 92 of the UCMJ after an official investigation revealed misuse of his Government Travel Card.”

According to AF Form 709, Promotion Recommendation, for Promotion Board XXXX and provided by the applicant, he received an Overall Recommendation of “Do Not Promote This Board.”  In Block IV, Promotion Recommendation, it states “[The applicant] was issued a Letter of Counseling 25 May 2017 for violating Article 92 of the UCMJ after an official investigation revealed misuse of his Government Travel Card” and “[the applicant] has not reported for duty from the time period of 21 Jan 2017 to 10 Jun 2019.”

The ERAB denied the applicant’s request to remove his OPR and XXXX and XXXX PRFs.

For more information, see the excerpt of the applicant’s record at Exhibit B.

APPLICABLE AUTHORITY/GUIDANCE

In accordance with AFI 36-2907, Unfavorable Information File: 

Paragraph 4.1. Who Can Use Counseling, Admonitions, and Reprimands. Commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission. This includes issuing administrative counseling, admonitions, and reprimands to reservists who commit an offense while in civilian status.

Paragraph 4.1.1. Raters must consider making comments on performance reports when the ratee receives any of these adverse actions.

Paragraph 4.1.3. Standard of Proof. While no specific standard of proof applies to administrative action proceedings, commanders should utilize the “preponderance of the evidence” standard when evaluating the evidence and every element of the offenses committed. A preponderance of the evidence means simply the greater weight of credible evidence. Whether such proof is available should be considered before initiating the administrative action. If such proof is lacking, administrative action is susceptible to being found to be legally unsupportable and, as a result, could be set aside. There is no requirement to prove any allegation beyond a reasonable doubt.

Paragraph 4.2. Records of Individual Counseling (RIC) and LOCs. Counseling helps people use good judgment, assume responsibility, and face and solve problems. Counselors assist subordinates in developing skills, attitudes, and behaviors that are consistent with maintaining the Air Force's readiness. 

In accordance with DOD Instruction (DODI), 5154.31, Volume 4, Government Travel Charge Card Regulations:

Paragraph 040304. Automated Teller Machine (ATM) Use

Travelers may use their travel card (IBA or CBA unit card) at ATMs to obtain cash needed to pay for “out-of-pocket” travel related expenses. Valid “out-of-pocket” travel related expenses are those that cannot be charged on the travel card (see section 040603 for examples). The cardholder will contact the travel card vendor to establish a PIN to gain ATM access. ATM advances will not be obtained more than three working days before the scheduled departure date of any official travel. The travel card vendor will charge the cardholder a transaction fee for ATM use... ATM withdrawals during non-travel periods or not related to official Government travel requirements are “not authorized” and are considered misuse (see paragraph 041005 for examples). This includes but is not limited to any withdrawal of a credit balance or any amount the travel card vendor owes the cardholder. Commanders or supervisors may authorize a travel advance, in writing, from a DoD disbursing office in situations where ATM access is not feasible with the travel card.

Paragraph 040603. Exemption of Mandatory Use for Expenses 

Expenses, including meals, incurred at a vendor that does not accept the travel card, such as government dining facilities, coin-operated parking meters, toll booths, laundry facilities, official local and long distance phone calls, etc. are exempt from the mandatory use of the travel card (IBA). However, since cardholders are required to use the travel card for all official travel related expenses, they should withdraw cash from an ATM to pay for these expenses, where practicable.

Paragraph 041005. Personal Use, Misuse, Abuse or Fraud

Personal use, misuse, abuse or fraud of the travel card will not be tolerated.  Commanders/supervisors will ensure travel cards are used only for official travel related expenses (see section 040103). Examples of misuse can include, but are not limited to…(e) cash withdrawals or advances taken more than three working days prior to official government travel. With the exception of expenses incident to official travel described in paragraph 041006, use of the travel card for personal expenses incurred during leave in conjunction with official travel is not authorized. Cardholders who misuse their travel card may be subject to administrative or disciplinary action, as appropriate. 

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board took notice of the applicant’s complete submission in judging the merits of the case, and finds a preponderance of the evidence substantiates the applicant’s contentions.  The applicant states and the Board concurs that DODI 5154.31 allows withdrawal of money from an ATM not more than three working days before the scheduled departure date of any official travel.  The Board finds the applicant did not misuse his government travel card and therefore, recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show: 

	a.  The AF Form 707, Officer Performance Report (Lt thru Col), rendered for the period 22 Jan 16 through 21 Jan 17 be declared void and removed and replaced with an AF Form 77, Letter of Evaluation which states “Not rated for the above period.  Evaluation removed by Order of the SecAF.”  

	b. The AF Form 709, Promotion Recommendation, for Promotion Boards XXXX and XXXX, that reference the 25 May 17 Letter of Counseling, be declared void and removed from his records.

	c.  He be provided supplemental consideration for promotion to the grade of lieutenant colonel for all appropriate Special Selection Boards and any subsequent boards if not selected, beginning with Calendar Year 18 (CY18A).  

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-00296 in Executive Session on 19 Apr 22:

, Panel Chair
, Panel Member
, Panel Member

All members to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Dec 20.
Exhibit B: Documentary evidence, including relevant excerpts from official records.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.