RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00307 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His summary court-martial conviction be expunged from his record. 2. His general discharge be upgraded to honorable and his narrative reason for separation be changed. 3. His referral Enlisted Performance Report (EPR) for the period ending 17 Jun 09 be declared void and removed from his record. 4. His Unfavorable Information File (UIF) be removed from his record. APPLICANT CONTENDS THAT: He was sent on a Temporary Duty (TDY) assignment in support of the NATO Baltic Air Mission in Lithuania. Although he was a relatively new Air Force Office of Special Investigations (AFOSI) agent, he was left by himself. He was scapegoated by the failure of senior leadership to provide extra help. He was forced by AFOSI superiors to work beyond all reasonable standards until he was exhausted. He was greatly fatigued from working numerous 18-20 hour days and was denied requests for logistical and personnel support. On 7 Dec 08, he had 3-4 hours of sleep and began to drive from outlying Siauliai to Vilnius. He contacted his supervisor by cell phone and requested additional personnel to assist him. To stay alert, he had a bottle of cola and cappuccino. He wore his seatbelt and drove within the legal speed limit. He was not using his cell phone and was paying full attention to his driving. He has no recollection of feeling drowsy. Tragically, he fell asleep. His car crashed into a slow moving funeral procession and a Lithuanian national was killed. He was tried by summary court-martial for violation of Article 134, Uniform Code of Military Justice (UCMJ), negligent homicide. Upon negotiated pleas of guilty, he was found guilty and sentenced to reduction to the grade of Senior Airman (SrA, E-4) and forfeiture of $1,146. One Article 32 investigating officer recommended an Article 15, not court-martial as AFI 36-2910, Line of Duty (Misconduct) Determination, specifically addresses motor vehicle accidents and that it is not necessarily misconduct that a member has an auto accident due to falling asleep while driving. A safety investigation was not completed. There is no evidence he was driving inattentively or talking on his cell phone. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 22 Jul 98, the applicant entered the Regular Air Force. He received a referral EPR for the period ending 17 Jun 09. The specific reasons for the referral EPR were that he failed to notify his chain of command of a co-worker’s suicidal ideations, resulting in a Letter of Admonishment (LOA) and UIF. He also disobeyed a no-contact order and charged $800.00 on a government cell phone while deployed resulting in a Letter of Reprimand (LOR). On 6 Dec 10, the applicant was found guilty of negligent homicide, in violation of Article 134, UCMJ by a summary court-martial. He was reduced to the grade of SrA and required to forfeit $1,146 of his pay for one month. On 30 Dec 10, the convening authority approved the adjudged sentence. On 17 Feb 11, he was discharged with service characterized as general (under honorable conditions) with a narrative reason for separation of “Misconduct (Serious Offense).” He was credited with 12 years, 6 months and 26 days of active duty service. The applicant’s post-service activities include pursuing higher education while working part-time as a loss prevention officer. In 2013, he received a bachelor’s degree, with honors, from American Military University. He is currently seeking full-time employment and continues to serve his community by volunteering with the local American Red Cross Community Emergency Response Team, a nation-wide veteran service organization and Team Rubicon. In a letter dated 27 Jan 14, SAF/MRBR advised the applicant that the part of his application for correction of military records (DD Form 149) requesting a review to upgrade his discharge cannot be processed on a DD 149. The letter also stated that the Air Force Boards for Correction of Military Records requires applicants to first exhaust all other administrative remedies afforded by existing laws or regulation and this application did not reflect his request was previously processed under the provisions of Section 1553, Title 10, United States Code, and reviewed by the Air Force Discharge Review Board (AFDRB). The applicant was also advised to request the AFDRB review his discharge by completing and submitting a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. In a letter dated 10 Feb 14, counsel responded to the SAF/MRBR’s letter and declined application to the Discharge Review Board (DRB) for upgrade of the discharge and requested the Board adjudicate the entire application (Exhibit D). AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to overturn the court-martial conviction. Based on their review, JAJM sees no error or injustice with the court-martial process that would warrant granting the applicant relief. If he did not feel he was guilty of the charged misconduct, he had the right to object to trial by summary court-martial. He also had the right to plead not guilty. However, he chose not to object to the summary court-martial forum. He also freely pled guilty to the negligent homicide charge and then went on to explain to the summary court-officer under oath the basis for his guilty plea. The applicant was driving near Ukmerge, Lithuania on official duty en route to meet U.S. embassy personnel when he struck another vehicle killing the passenger. Subsequently, charges were preferred against the applicant for reckless driving in violation of Article 111, UCMJ, involuntary manslaughter, in violation of Article 119, UCMJ, and negligent homicide, in violation of Article 134, UCMJ. An Article 32 investigation was conducted 19 thru 22 Jan 10 and the investigating officer recommended that the matter be disposed of with non-judicial punishment. On 4 Oct 10, a second Article 32 pretrial investigation was conducted. This time, it was recommended that the matter be handled by a summary court-martial. On 15 Nov 10, the convening authority referred the charges to a summary court-martial. On 6 Dec 10, the summary court-martial was conducted. IAW his plea, he was found guilty of negligent homicide, in violation of Article 134, UCMJ. The government did not proceed with the reckless driving and involuntary manslaughter charges. He was reduced to the grade of SrA and required to forfeit $1,146 pay for one month. On 30 Dec 10, the convening authority approved the adjudged sentence The complete JAJM evaluation is at Exhibit E. AFPC/DPSIM recommends denial of the applicant’s request to remove the UIF. DPSIM cannot speak as to whether the commander’s action was just or not; however, they concluded proper procedures were followed. IAW AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 1.2.2.1 commanders at all levels for enlisted members assigned or attached to their units have the authority to establish, remove or destroy UIFs. The complete DPSIM evaluation is at Exhibit F. AFPC/DPSID recommends denial of the applicant’s request to remove the referral EPR. DPSID states the applicant has not provided any compelling evidence to show that the report was unjust or inaccurate as written. 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. He has waited 5 years to file this appeal and offered no justification for the delay and took no action on the claim before that. The contested EPR makes no mention of an accident, court-martial or UIF as the incident was still under investigation. The report is a referral, yet references two other situations none which the applicant provided any evidence to contest. Air Force policy states, evaluators are obliged to consider such incidents, their significance and the frequency with which they occurred in assessing performance and potential. He provided no evidence within his case to show that the EPR was inaccurate or unjust. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record and is considered to represent the rating chain’s best judgment at the time it is rendered. The complete DPSID evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 Nov 14, the applicant’s counsel submitted a 51-page document stating that the advisories miss the crucial issue that the auto accident happened as a direct result of him being obliged to work beyond normal human competency with a little over 3 hours of sleep each night. Nowhere do the advisories challenge this fact or explain why his superiors placed such a burden on him. They isolated him without even temporary help while real-time terrorist threats endangered American personnel. The threats escalated and called for 2 to 3 agents but he did not receive help even though he, a new agent, asked for help at least 8 times. The EPR includes relevant bullets and confirms the increased tempo while deployed in support of Baltic Air Policing Operations. There are specific bullets referring to the applicant’s work with the host nation to neutralize threats and monitor suspected terrorist activities. The applicant is a proficient driver. He was the executive driver for the USAFE Commanding General prior to joining the AFOSI and he has completed numerous driving training courses. At the time of the accident, he was not using his cell phone or speeding as corroborated by a lie detector test. Air Force safety regulations include specific requirements. His superiors compromised him and the mission by refusing relief and exhausting him. AFI 91-207, The US Air Force Traffic Safety Program, addresses safety and extended hours. AFP 91-216, USAF Safety Deployment and Contingency Pamphlet, paragraph 14.1, states fatigue can cause mishaps. After 48 to 72 hours without sleep, personnel become ineffective. An advisory opinion from safety officials on how pertinent Air Force safety standards were spurned is recommended should the Board have any remaining questions. The advisories cite statute of limitations but this is not an ancient case and the summary court-martial happened in late 2010. There has been no unwarranted delay. Undue delay is more in the range of 15 years, the timeframe Congress set for applications to the DRB. The advisories suggest that the passage of time means that documentation does not exist. Under the Freedom of Information Act (FOIA), the applicant obtained sanitized documents confirming his onerous extra duties. The FOIA staffers reference numerous documents from the time of the applicant’s TDY claiming various privileges to withhold data. If no pertinent documents exist, the FOIA people would have said so. The applicant accepted a summary court-martial on the advice of defense counsel after 23 months, two Article 32 investigations and the threat of general court-martial. He was disadvantaged by the lack of a normal safety investigation mandated under AFI 191- 202 [sic]. Furthermore, his commanders declined to accept the recommendation of the original Article 32 investigation officer, a colonel (O-6), who recommended an Article 15 instead of court- martial and prosecution refused to recognize that falling asleep is not an indication of negligence under the LOD standards. The applicant pleaded not guilty to other matters, while conceding one charge of simple negligence. His election does not bar him from seeking redress now. It is highly unfair to deny him relief because of an earlier admonishment. He was admonished for not informing higher headquarters of the possible mental volatility of another agent. This is irrelevant to this issue. Whether the applicant was the agent of the year or the worst bumbler ever to serve the AFOSI, overload is overload and nothing can change this fact. The harsh punishment has served its purpose given the good citizenship of the applicant. Since leaving the service, the applicant serves in the Mountain West Voluntary Organization Active in Disaster (VOAD) and coordinates over 100 volunteers throughout 10 states during times of disaster. He is an advisor to the Federal Emergency Management Agency (FEMA) for the Nuclear/Radiological Incident Annex and is a trained suicide counselor to prevent veteran suicides. A complete post-service biography is provided. The applicant’s complete submission, with attachments, is at Exhibit I. THE BOARD CONCLUDES THAT: 1. The applicant has not exhausted all remedies provided by existing law or regulations. We note the applicant declined application to the Discharge Review Board (DRB) for upgrade of the discharge and requests the Board adjudicate the entire application. However, this Board is the highest administrative level of appeal within the Air Force. As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction. After carefully reviewing this application we note there is an available avenue of possible administrative relief the applicant has not exhausted. In view of this, we find that consideration of the applicant’s appeal to upgrade his discharge or change his narrative reason for separation by this Board is not appropriate at this time. Therefore, the applicant should submit a DD Form 293 to the DRB for review. If he is not successful in obtaining the relief he seeks through available administrative channels, he may then consider resubmitting his appeal to this Board. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note the applicant requests his summary court-martial conviction be expunged from his record. However, this Board is without authority to reverse, set aside, or otherwise expunge a court- martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), our actions are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court- martial for the purpose of clemency. In view of the foregoing, we find no basis to act on this portion of his request. 4. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant removing the contested EPR or UIF. After carefully reviewing the evidence, we are not persuaded that the report is not a true and accurate assessment of his behavior and demonstrated potential during the specified time period or that the ratings he received were in error or contrary to the provisions of the governing instruction. We are also not persuaded that the UIF should be declared void and removed from his records. While counsel argues the accident happened because the applicant was greatly fatigued from working numerous 18-20 hour days without logistical and personnel support; we do not find these assertions, in and by themselves, sufficiently persuasive. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt the rationale expressed as the basis for their conclusion that the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 5. 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 exhausting all subordinate avenues of administrative relief or the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2014-00307 in Executive Session on 9 Dec 14 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00307 was considered: Exhibit A. DD Form 149, dated 10 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, SAF/MRBR, dated 27 Jan 14. Exhibit D. Letter, Counsel, dated 10 Feb 14. Exhibit E. Memorandum, AFLOA/JAJM, dated 28 Feb 14. Exhibit F. Memorandum, AFPC/DPSIM, dated 7 Mar 14. Exhibit G. Memorandum, AFPC/DPSID, dated 14 Oct 14. Exhibit H. Letter, SAF/MRBR, dated 27 Oct 14. Exhibit I. Letter, Counsel, dated 22 Nov 14, w/atchs.