RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03266 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Article 15, imposed on 10 December 2009, be set aside and all references to the nonjudicial punishment, be removed from his records. _________________________________________________________________ APPLICANT CONTENDS THAT: There was insufficient evidence to support the commander’s finding that he had committed the offenses that led to his nonjudicial punishment. The facts do not support the allegation that he made a fraudulent claim against the United States or that he knew it to be fraudulent. He did not act with the intent to defraud the government. He had no reason or motive to do so, he had no history of questionable conduct, he did not need the money, and the explanations he provided for his conduct are credible and supported by the evidence. In support of his appeal, the applicant provides a statement from his counsel, character references, copies of travel vouchers, a copy of the Commander-Directed Investigation (CDI), a copy of the contested Article 15, and supporting documentation to the Article 15 action. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who was released from active duty on 1 March 2012 as a result of the Reduction-In-Force Board in September 2011. While serving on active duty, the applicant’s commander imposed nonjudicial punishment on the applicant on 10 December 2009, for one specification of making a fraudulent claim against the United States, in violation of Article 132, Uniform Code of Military Justice (UCMJ), and four specifications of dereliction of duty, in violation of Article 92, UCMJ. One of the derelictions of duty specifications was for failing to refrain from claiming unauthorized travel expenses and the other three dereliction of duty specifications were for failing to use his government travel card for lodging expenses arising from official government travel. The applicant consulted with a defense counsel and accepted the Article 15, waiving his right to demand trial by court-martial. He presented written matters to the commander and made a personal appearance. On 10 December 2009, the commander lined out three specifications alleging dereliction of duty for failing to use his government travel card for lodging expenses arising from official government travel. The commander also found that the applicant had committed the alleged offenses of making a fraudulent claim against the United States and dereliction of duty for failing to refrain from claiming unauthorized travel expenses. The commander imposed punishment consisting of forfeiture of $2,361.00 pay per month for two months and a reprimand. The applicant appealed the commander’s decision and also submitted matters for consideration by the commander on the question of whether the commander would file the Article 15 in the applicant’s Officer Selection Record (OSR). The commander and the appellate authority both denied the applicant’s appeal. The commander determined that he would file Article 15 in the applicant’s OSR. The Article 15 action was reviewed and determined to be legally sufficient. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant’s allegations of error or injustice focus on the issue of whether there is sufficient evidence to support the commander’s findings. There is no allegation of error in the processing of the action and an examination of the Article 15 did not show any such error. When the applicant waived his right to court-martial and accepted nonjudicial punishment, he accepted that the commander would be the one to make the final determination on guilt and punishment. The commander was in the best position to evaluate the evidence and the submissions by the applicant in coming to a final decision. More to the point, the applicant empowered the commander to be the one to make the decision. It does not matter that another individual may have evaluated the evidence and the applicant’s submissions in a different way. There is no evidence that the applicant’s commander was arbitrary or capricious in finding the applicant committed the offense. When there is competing or contrary evidence, the commander can give whatever weight he chooses to the individual pieces of evidence. Likewise, the commander gets to judge the credibility of the witnesses in the case, including that of the accused. In this case, the applicant’s knowledge of the falseness of the claim seems to have been the key question in controversy and the commander appears not to have given great weight to the applicant’s protestation that he did not intend to defraud the government. This was within the commander’s discretion and does not constitute error sufficient to warrant action by the Board. The applicant’s defense counsel also alleges error and injustice in stating the applicant was not derelict in the performance of his duties. The applicant’s commander lined through three of the four specifications of dereliction of duty; therefore, this allegation of error or injustice relates to the specification which states the applicant was derelict in the performance of his duty not to claim unauthorized travel expenses. The defense counsel argues that the specification is so broad and unspecific that the applicant was not put on notice with respect to the alleged unauthorized travel expense he had to defend against. However, when all of the specifications are looked at together, it is clear the applicant knew with some specificity that he was accused of claiming unauthorized travel expenses on his 14 April 2009 travel voucher for a total amount of $1,710.60 and which fraudulent amount was alleged to be $145.00. It is also clear that this dereliction of duty specification was drafted in conjunction with the specification of making a fraudulent claim against the United States. The commander’s basis for finding the applicant committed this dereliction of duty offense is similar to that of the fraudulent claim offense and; therefore, there was sufficient evidence for the commander to have found the applicant committed the offense. With regard to the defense counsel’s allegation that the dereliction of duty specification was overbroad and unspecific, it is important to point out that the commander can impose the full range of nonjudicial punishment for even a single specification. Even if the commander had not found that the applicant had committed the offense of dereliction of duty, the commander could have imposed the very same punishment just for finding the applicant committed the Article 132, UCMJ, offense of making a fraudulent claim. We find that based on the evidence provided and considering the other factors mentioned by the applicant, there was no error or injustice in the commander’s finding the applicant committed these offenses. Furthermore, the punishment imposed was appropriate to the offenses and not unfairly harsh. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ COUNSEL'S REVIEW OF AIR FORCE EVALUATION: It does not appear that the author of the advisory opinion considered his client’s evidence in any detail. Rather, the author makes conclusory statements that are undetermined by the evidence of record. The charges the applicant faced would not have been brought if the evidence of record had been carefully scrutinized. His client is an exceptional officer and is punctilious in complying with regulations. To permit the Article 15 records to remain, the Board would have to conclude that, after considering all the evidence, this fine officer intended to steal $145.00 from the government. His client did not do so, had no reason to do so, and simply is not the type of person who would do so. The counsel’s complete rebuttal is at Exhibit D. _________________________________________________________________ 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 note the applicant’s contention that there was insufficient evidence to support fraud; however, after reviewing all the evidence provided, we are not persuaded that the nonjudicial punishment, imposed on 10 December 2009 was improper. We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, the Board does not believe the applicant has suffered an injustice. In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority. The Board does not believe there is such showing here. The evidence indicates that during the processing of this Article 15, the applicant was offered every right to which he was entitled. There is nothing in the evidence provided, other than the applicant’s assertions, which would lead the Board to believe that the actions by the imposing commander were inappropriate or that he did not have access to all of the information necessary on which to base his decision. The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of this Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ. Therefore, in the absence of evidence to the contrary, we find no basis 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-2011-03266 in Executive Session on 23 January 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-2011-03266: Exhibit A. DD Form 149, dated 15 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 7 Nov 11. Exhibit D. Letter, SAF/MRBR, dated 18 Nov 11. Exhibit E. Letter, Counsel, dated 12 Mar 13. Panel Chair