RECORD OF PROCEEDINGS


             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-01523
      INDEX CODE 126.04  111.01  111.05
            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Uniform Code of Military Justice (UCMJ), dated  23 Nov
99, be voided from his records and  he  be  reimbursed  the  $2,000.00
forfeiture imposed.

His Officer Performance Report (OPR), rendered for the period 1 Jun 99
through 31 May 00, be declared void and removed from his records.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was formally charged with misconduct  of  three  military  Articles
(Articles 107, 92 and 121).  With the help of the Area Defense Counsel
(ADC) and his rebuttal, the commander removed the Article 121,  charge
of larceny.  However, leaving the other two articles is unexplainable.
 Once the charge of larceny was  removed,  the  use  of  the  military
credit card and filing the travel voucher were the  appropriate  thing
to do.  He was never told that  he  could  not  travel  on  orders  in
August.  His Finance Office told him that the orders,  travel  voucher
and use of credit card were legal.

The contested referral OPR is biased based on  an  unjust  Article  15
punishment imposed on him.

In support of his request, applicant submits copies of the Article 15,
TDY  orders,   travel   vouchers,   AF   Form   1168   (Statement   of
Suspect/Witness/Complaint) and additional  documents  associated  with
the  issues  cited  in  his  contentions.   The  applicant’s  complete
submission, with attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
28 May 79.  He is currently serving on active duty  in  the  grade  of
lieutenant colonel, effective and with a date of rank of 28 May 1990.

On 23 Nov 99, applicant was notified  of  his  commander's  intent  to
impose nonjudicial punishment on him under Article 15, Uniform Code of
Military Justice  (UCMJ).   The  misconduct  applicant  had  allegedly
committed was filing a false travel voucher, larceny  and  dereliction
of duty, in  violation  of  Articles  107,  121  and  92,  UCMJ.   The
applicant consulted a lawyer, waived his  right  to  demand  trial  by
court-martial and accepted nonjudicial punishment.  After  considering
all matters presented to him, the commander found that  the  applicant
had  committed  the  offenses  of  filing  a  fraudulent  voucher  and
dereliction of duty by using  his  government  credit  card  when  not
authorized to do so, but found that he had not committed  the  larceny
offense.  The commander imposed punishment of forfeitures of $1,000.00
pay per month for two months and a reprimand.  The applicant  appealed
the finding and nonjudicial punishment.  On 22 Dec 99, his appeal  was
denied by the appellate authority.

He received 10 Officer Performance Reports  (OPRs)  in  the  grade  of
lieutenant colonel, in  which  the  overall  evaluations  were  “Meets
Standards (rating periods ending 30 Apr 91 through 31 May  99).”   The
contested Referral OPR, closing 31 May 00, reflects an  evaluation  of
“Does Not Meet Standards.”  His most recent OPR, closing 31 May 01  is
a Referral OPR, with an evaluation of “Does Not Meet Standards.”

The applicant was considered and  nonselected  for  promotion  to  the
grade of colonel, in the promotion zone (IPZ), by the CYs  94  and  95
Medical Corps/Dental Corps (MC/DC) Selection Boards, which convened on
7 Nov 94 and 6 Nov 95 respectively.  He was considered and nonselected
for promotion to the grade of colonel, above the promotion zone (APZ),
by the CYs 96, 97, 98A, 99A, 00A and 01A MC/DC Selection Boards, which
convened on 12 Nov 96, 5 Nov 97, 9 Nov 98, 8 Nov 99, 6 Nov 00  and  22
Oct 01 respectively.

The remaining relevant facts pertaining to this application, extracted
from the applicant’s military records, are contained  in  the  letters
prepared by the appropriate offices of the Air Force at Exhibits C, D,
and G.).
_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the applicant’s request to have his  Article  15
set aside be denied.  JAJM stated that the applicant was  assigned  to
Patrick AFB, FL, and his wife was assigned to Maxwell AFB, AL, but was
staying  with  the  applicant  while  on  convalescent  leave  pending
retirement.  During 1999, applicant had traveled with his  wife  as  a
non-medical attendant three times.  In Aug, applicant wanted to travel
as a non-medical attendant with his  wife.   Maxwell  AFB  cut  orders
authorizing  applicant  to  travel  at  government  expense;  however,
applicant’s chain of command questioned whether applicant’s travel was
necessary.  It was determined that applicant’s wife did not require  a
non-medical attendant and  the  applicant’s  supervisor  notified  the
applicant that he was not authorized to travel on the  orders  already
cut but would be required to take leave.  Applicant’s supervisor  also
called Maxwell AFB to have the orders cancelled and  reissued  without
applicant’s name on them.  On  or  before  3  Aug,  applicant’s  leave
request was granted.  He then notified the Medical Support Squadron at
Maxwell AFB that his commander had approved his travel and  that  they
should not cancel the orders.  On  4  Aug,  applicant  then  used  the
government orders to pick up a ticket for travel.  He  also  used  his
government credit card while traveling for cash advances, which he was
not authorized to do.  Upon returning to Patrick  AFB,  the  applicant
filed a voucher claiming reimbursement for traveling expenses.

On 23 Nov 99, applicant was offered an Article  15  for  violation  of
Articles 107, 121 and 92 of the Uniform Code of Military Justice.  The
Article 121  violation  was  subsequently  dismissed.   The  applicant
appealed the finding and punishment; however, the appellate  authority
denied the appeal on 22 Dec 99.

With respect to the applicant’s assertion  that  he  had  been  issued
orders to travel and indeed he had, JAJM stated that  the  applicant’s
authorization to use the orders had been rescinded.   While  applicant
contends he did not know he was not authorized to use the  orders,  he
did request leave in order to travel.  Applicant now  argues  that  he
thought he had to be on leave to accept orders from another unit.   He
claims he thought his commander’s approval of his  leave  request  was
approval to travel on the orders.  In JAJM’s opinion, that  conclusion
by a lieutenant colonel, with  some  20  years  active  duty,  is  not
reasonable or defensible.  The applicant never had this  misconception
before when he traveled three separate times (Feb,  Mar  and  May)  on
orders cut by Maxwell AFB.

As to applicant’s contention that because the numbered SW/CC found  he
did not commit the offense of larceny, there is no basis  for  finding
he committed the remaining offenses, JAJM stated that  dismissing  the
offense of larceny is entirely consistent with  finding  that  he  had
committed the other offenses.  There is sufficient  evidence  to  find
that applicant used his credit card when he was not authorized  to  do
so and  that  he  filed  a  travel  voucher  to  receive  payment  for
reimbursable  expenses  using  travel  orders  he  knew  he  was   not
authorized to use.

The AFLSA/JAJM evaluation is at Exhibit C.


HQ AFPC/DPPPE recommends the applicant’s request for  removal  of  the
referral OPR from his  records  be  denied.   DPPPE  stated  that  the
applicant has not substantiated the OPR to  be  unjust.   Furthermore,
the applicant did not provide supporting documentation to support  his
claim of bias or unfair assessment.  The Article 15 punishment has not
been set aside; therefore, it is an appropriate comment on his 31  May
00 OPR.  The HQ AFPC/DPPPE evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and  indicated  that  his
wife met the criteria  for  a  Non-Medical  Attendant  (NMA)  and  her
providers substantiate this.  The numbered MDG/DP (Col  C---)  made  a
prejudicial unilateral decision and said that his wife did not require
a NMA. The numbered MDG/DP did not contact the appropriate authorities
at Maxwell AFB to find out if his wife required a NMA as ordered,  nor
did  he  contact  Wilford  Hall  Medical  Center   (WHMC)   for   this
determination.  He made the proper actions to obtain orders  from  the
numbered MDG (Patrick AFB) to go to WHMC for the Aug 99  TDY  for  his
continued medical care with his Urologist.  He has  provided  evidence
that the previous group commander, Col W. S---,  authorized  this  TDY
and he did not need NMA orders from Maxwell AFB to go to WHMC.  He has
provided evidence that Col C--- and his physician, Col (Dr) B---  were
aware of this action.  The numbered MDG was in the process of  cutting
TDY orders for him to attend a follow-up appointment following his May
99 surgery.  With the knowledge of Col S---, he was able to coordinate
that his wife’s medical care at WHMC be scheduled for the same time as
his appointment.  He did not request NMA orders for the  Aug  99  TDY,
Maxwell AFB sent him the orders.  He traveled  to  WHMC  on  only  one
occasion as NMA, with Maxwell AFB orders (Feb 99).  At that  time,  he
was on leave.  It was not four times as the  advisory  writer  stated.
There has only been three occasions in which he has  used  NMA  orders
from Maxwell: Feb 99, Aug 99 and Nov 99.  In each of these Maxwell AFB
NMA orders, he has  been  on  leave.   Col  C---  submitted  erroneous
documents  and  gave  erroneous  written  information  and  misleading
information in an official  investigation.   Col  (Dr)  B---  provided
inaccurate information to the Special Forces investigation  and  legal
office.  Col C---’ abuse of authority has not only led him to have  an
Article 15, but also a loss of income over $60,000, loss of promotion,
loss of job opportunities, personal grief and actions to be  separated
from the USAF.

His wing commander has subsequently given him a Notification  of  Show
Cause Action (SCA).  His options were to either meet a board to  fight
this action or retire.  He submitted his retirement papers for  1  Jun
02, this would complete the 23 years of active duty  commitment.   The
results of his AFBCMR case would be crucial in the cancellation of the
SCA.

Refer to Exhibit F  for  the  applicant’s  complete  submission,  with
attachments.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant  to  the  Board’s  request,  the  AFBCMR  Medical  Consultant
provided the following advisory opinion concerning whether or not  the
applicant’s presence as  a  non-medical  attendant  for  his  spouse’s
medical care travel was essential.

The AFBCMR Medical Consultant, reviewed this application and is of the
opinion  that  non-medical  attendance  was  not  required   for   the
applicant’s wife’s Aug 99  travel.   After  thoroughly  reviewing  the
information provided by the applicant  regarding  his  wife’s  medical
condition, the AFBCMR Medical Consultant is disinclined to agree  that
his presence was necessary  for  the  contested  trip  to  TX.   While
continuing to require follow-up care for her eye problems, she was not
incapacitated to the point of absolutely needing someone with her  for
her travels.  The applicant himself comments that she was helping  him
move some office furniture when he injured his back in  July,  so  her
condition clearly was not of such degree as to inhibit her  activities
or travel capabilities to require someone attend her  in  August.  The
AFBCMR Medical Consultant’s evaluation is at Exhibit G.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

It appears that the AFBCMR Medical Consultant was not  satisfied  with
the documentation  he  submitted;  therefore,  he  submits  additional
matters that will substantiate his wife’s need for medical  assistance
(refer to Exhibit I).  His wife’s care was not only in her travel  but
also in her daily activities.  The somnolence  effects  of  her  drugs
made her more disabled.  It was his responsibility to take care of his
wife.  If he had to go to the clinic at night, his wife  had  to  come
with him.

In support of his  appeal,  the  former  numbered  Medical  Operations
Squadron Commander, Maxwell AFB, submitted a statement concerning  the
mental, emotional and physical stability and needs of the  applicant’s
wife (Exhibit I).

The  applicant’s  complete  submission,  with  attachments,  and   the
additional statement of support are at Exhibit I.
_________________________________________________________________

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.  After thoroughly  reviewing  the
evidence of record and noting the applicant’s complete submission,  we
agree with the opinions and  recommendations  of  the  respective  Air
Force offices and adopt the rationale expressed as the basis for their
decision that the applicant has failed to sustain his burden  that  he
has suffered either an error or an injustice.  In view  of  the  above
and absent sufficient evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought in this application.
_________________________________________________________________

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 Docket  Number  01-01523
in Executive on 17 April 2002, under the provisions of AFI 36-2603:

                  Mr. Vaughn E. Schlunz, Panel Chair
                  Mr. Billy C. Baxter, Member
                  Mr. James W. Russell III, Member

Messrs. Schlunz and Baxter voted to deny the applicant's request.  Mr.
Russell  recused  himself  from  considering  this  application.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 24 May 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 4 Sep 01.
   Exhibit D.  Letter, HQ AFPC/DPPPE, dated 5 Oct 01.
   Exhibit E.  SAF/MRBR dated 25 Oct 01.
   Exhibit F.  Letter from Applicant, dated 23 Nov 01, w/atchs.
   Exhibit G.  Letter, AFBCMR Medical Consultant, dated
                   17 Dec 01.
   Exhibit H.  AFBCMR, dated 27 Dec 01.
   Exhibit I.  Letter from Applicant, dated 22 Jan 02, w/atchs,
               and a Letter from the former numbered Medical
               Operations Squadron Commander, dated 23 Jan 02.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair