RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01684
            INDEX CODE:  126.04

            COUNSEL:  RONALD P. KELLER

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 initiated on 19 Apr 98 and
imposed on 6 Jun 98 be set aside and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not commit the alleged  offenses.   He  was  not  permitted  to
present  a  complete  defense.    At   no   time   was   his   conduct
unprofessional.

In support of his appeal, the  applicant  provided  a  statement  from
counsel, a personal  statement,  and  copies  of  the  Article  15,  a
response to an officer grade determination  (OGD),  and  a  report  of
investigation.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was relieved from active duty on  31  Jan  99  and  retired,
effective 1 Feb 99, in  the  grade  of  lieutenant  colonel.   He  was
credited with 23 years, 7 months, and 27 days of active duty service.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  noted  that  the  applicant,  then  a  lieutenant  colonel
assigned to the Air Force  Institute  of  Technology  (AFIT),  Wright-
Patterson AFB, Ohio, was offered nonjudicial punishment proceedings on
19 Apr 98 by the AFIT/CC for negligent dereliction of duty  consisting
of:  failing to follow appropriate  procedures  when  administering  a
Federal Express account for AFIT/ENG by  not  ensuring  that  AFIT/ENG
personnel did not  send  personal  correspondence  at  the  government
discount rate; and,  using  a  Federal  Express  account  set  up  for
AFIT/ENG for official business to send personal correspondence at  the
government rate, both in violation of Article 92, UCMJ.  In  addition,
the applicant was charged with having twice filed false and fraudulent
claims for reimbursement for personal correspondence sent via  Federal
Express, both times in the amount of $12.48, in violation  of  Article
132.  On 19 May 98,  after  consulting  with  counsel,  the  applicant
waived his  right  to  demand  trial  by  court-martial  and  accepted
nonjudicial punishment.  He made  a  personal  appearance  before  the
AFIT/ENG and submitted a written presentation.  The  matter  was  then
forwarded to the AU/CC for action.  On 6 Jun 98, the AU/CC  determined
that the applicant had committed  the  offenses  alleged  and  imposed
punishment consisting of forfeiture of $500 pay and a reprimand.   The
applicant's appeal to the AETC/CC was denied on 10 Jul 98.

According to JAJM, the applicant’s commander had  sufficient  evidence
before him upon which to base his finding that the applicant had  made
false claims.  A set aside should only be granted  when  the  evidence
demonstrates an error or a clear injustice.  While the  specifications
as to the derelictions of  duty  should  be  corrected,  the  evidence
presented by the applicant was insufficient to warrant  setting  aside
the entire Article 15 action, and did  not  demonstrate  an  equitable
basis for relief.  In JAJM’s  view,  the  applicant  has  provided  no
evidence  of  a  clear  error  or  injustice  related  to  the  entire
nonjudicial punishment action.  Therefore, JAJM recommended no  relief
beyond deleting the  specifications  1  and  2  under  Article  92  be
granted.

A complete copy of the  evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, counsel asked  that  the  Board  use  its  education,
training, and experience in making a fair decision in this  case.   He
does not believe that it is a fair and  just  decision  to  allow  the
applicant to suffer the stigma of an Article 15 determination when  it
was clear that he  had  no  criminal  intent  when  the  actions  were
undertaken.  There was no evidence that  he  needed  money,  or  other
motive for defrauding the  Government.   Quite  simply,  in  counsel’s
view, this was merely an oversight, and he hopes that the Board  would
seek to correct this matter.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or  injustice  regarding  the  applicant’s
request that the nonjudicial punishment under Article 15 imposed on  6
Jun 98 be set aside and removed from his records.  Normally  we  would
not be inclined to substitute our judgment for commanding officers who
are closer to events.  However, after a thorough review of  the  facts
and circumstances of this  case,  we  are  persuaded  that  corrective
action is warranted.  First, we agree with JAJM that the applicant was
not derelict in the performance of his duties by  negligently  failing
to follow procedures when administering  a  Federal  Express  account.
Secondly, we are not convinced that there was any fraudulent intent on
the part of the applicant when claims were filed for reimbursement for
official correspondence that included his personal correspondence.  In
our view, this was the result of administrative  oversight  caused  by
poor recordkeeping.  Thirdly, we opine that the punishment  meted  out
was  unduly  harsh  for  the  small  dollar  amount  involved  in  the
reimbursement for the applicant’s personal correspondence.  In view of
the foregoing,  we  recommend  favorable  action  on  the  applicant’s
request that the Article 15 be set aside and removed from his records.


_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be  corrected  to  show  that  the  nonjudicial
punishment under Article 15, UCMJ, initiated on 19 Apr 98 and  imposed
on 6 Jun 98, be declared void and expunged from his records,  and  all
rights, privileges, and property of which he may have been deprived be
restored.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 8 Nov 01, under the provisions of AFI 36-2603:

      Mr. Jackson A. Hauslein, Jr., Panel Chair
      Mr. John E. B. Smith, Member
      Mr. Thomas J. Topolski, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 15 Jun 01, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 11 Sep 01.
     Exhibit D.  Letter, SAF/MIBR, dated 28 Sep 01.
     Exhibit E.  Letter, counsel, dated 2 Nov 01.




                                   JACKSON A. HAUSLEIN, JR.
                                   Panel Chair













AFBCMR 01-01684




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that the nonjudicial
punishment under Article 15, UCMJ, initiated on 19 Apr 98 and imposed
on 6 Jun 98, be, and hereby is, declared void and expunged from his
records, and all rights, privileges, and property of which he may have
been deprived be restored.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency