RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-02200
            INDEX NUMBER:

      XXXXXXXXXXXXXXXXXX     COUNSEL:  Frank J. Spinner

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 he received on 8 May 1998 for travel voucher  and  leave
irregularities be set aside.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He followed  approved  and  established  office  procedures  in  filing
several travel vouchers during an extended  period  of  temporary  duty
with Headquarters Air Force Reserve Command (AFRC).

He repaid all travel funds in question within one day of being informed
that his travel vouchers had been paid incorrectly.

He believes that he was caught up in a political struggle  between  his
supervisor and the AFRC vice commander and has  provided  an  affidavit
from his supervisor that describes what happened.

He has suffered an injustice, and as a Vietnam veteran  who  flew  over
190 combat missions, never thought he would be attacked so unfairly.

In further support of his appeal, counsel for the applicant  submits  a
six-page brief of counsel along with 14 other attachments.

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

_______________________________________________________________

STATEMENT OF FACTS:

The pertinent facts pertaining  to  this  case  are  contained  in  the
evaluation prepared by AFLSA/JAJM at Exhibit C.

_______________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s request be denied.

On 13 Apr 1998, the applicant was offered  nonjudicial  punishment  for
four specifications of dereliction of duty in violation of Article  92,
UCMJ.  The specifications involved travel voucher  irregularities  with
one allegation related to leave irregularities.  On 27  Apr  98,  after
consulting with military defense  counsel,  the  applicant  waived  his
right to trial by court-martial and  accepted  nonjudicial  punishment.
He submitted a written presentation  and  made  a  personal  appearance
before  his  commander.   After  considering  the  evidence   and   the
applicant’s response,  the  commander  determined  that  the  applicant
committed the offenses and imposed punishment of a  reprimand.   On  12
May  98,  the  applicant  appealed  the  punishment.    The   appellate
authority, HQ USAF/CV, denied the applicant’s appeal on 13 Jul 98.

The applicant was on extended temporary duty  (TDY)  orders  to  Robins
AFB, GA, over a period of at least two years in the 1996  through  1998
timeframe.  While on TDY to Robins, the applicant would also go TDY  to
other locations.  The applicant would file  his  long-term  TDY  travel
vouchers (TDY to Robins AFB) with Dobbins Air Reserve Base (ARB)  on  a
monthly basis.  The applicant would file  his  short  term  TDY  travel
vouchers (TDYs from Robins AFB)  with  the  local  Robins  AFB  finance
instead of through Dobbins.  This resulted in the  applicant  receiving
double payments on per diem and lodging during the periods when he  was
TDY from Robins AFB.  At the time, finance was unable to reconcile this
discrepancy since the vouchers were  filed  at  two  different  finance
offices.  All reservists are required to  file  their  travel  vouchers
through Dobbins ARB in order to prevent double payments from occurring.

The material presented by the applicant indicates that he was  recalled
to active duty from the retired reserve to  manage  Operation  TRANSAM.
Because of fiscal restraints, he was placed on TDY orders to Robins and
then went on subsequent TDYs  from  there.   He  apparently  maintained
quarters at Robins when he went on TDYs from  there.   The  TDY  orders
sending him to Robins were funded and paid from Dobbins ARB  while  the
TDYs from Robins were paid from TRANSAM funds maintained at Robins.

The offenses listed in the Article 15 alleged that the  applicant  knew
or should have known of his  duties  to  follow  proper  procedures  in
filing travel vouchers and leave paperwork and that he was negligent in
failing to follow the proper procedures.  The applicant claims to  have
followed local office policy for filing his short  term  vouchers  with
the Robins AFB finance office.  Reserve pay procedures, however, differ
from active duty pay procedures and it is  common  knowledge  that  all
travel vouchers must be filed through Dobbins ARB.  It is reasonable to
conclude that the applicant, a senior Reserve officer with over  thirty
years of service, should have known of his duties to  file  his  travel
vouchers with Dobbins ARB.

As to the second and third allegations (claiming dual lodging  expenses
and dual TDY expenses) applicant states he was not aware he  was  being
overpaid as he assumed the vouchers were being reconciled and the money
was going straight to his bank account.  This  argument  fails  on  its
face, as applicant necessarily had to physically fill out  the  voucher
and  file  for  reimbursement  for  his  expenses.   He  certified  his
accounting was true and correct under penalty of  law.   The  applicant
states that he assumed  that  he  was  correctly  paid.   For  such  an
assumption to be valid, it requires that the individual  to  accurately
relate his travel status to the individual settling the  voucher.   The
applicant failed to do this and as a result, was paid  travel  expenses
to which he was not entitled.

Applicant cites as new evidence an affidavit from his  supervisor  that
indicates that he was a scapegoat in the ongoing struggle  between  the
supervisor and one of the commanders.  The affidavit fails to establish
the causal relationship between the applicant and the struggle  between
the other two.  The AFRC commander, with the advice of his  independent
staff judge advocate, initiated action against the  applicant  and  the
appeal authority was the vice chief of staff of the Air Force, who also
received advice  from  his  independent  staff  judge  advocate.   Even
assuming that the applicant was in the frag pattern of  a  dispute,  he
fails to establish how that dispute was  furthered  by  convincing  the
commander and appellate authority to take a  frivolous  action  against
him.

The evidence presented by the  applicant  is  insufficient  to  warrant
setting aside the Article  15  action,  and  does  not  demonstrate  an
equitable basis for relief.

The complete evaluation is at Exhibit C.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation and indicates
that he and the applicant believe that the documents presented  by  the
applicant establish that a clear injustice occurred when the  applicant
received an Article 15 for allegedly being derelict in the  performance
of his duties.

First and foremost, the applicant demonstrated that the travel vouchers
he filed with the Robins finance office were filed in  accordance  with
the orders he was given and the policy in effect in his  office.   This
is addressed in the affidavit supplied by his supervisor at the time.

Secondly, the evaluation places undue emphasis on the  claim  that  the
commander imposing punishment acted impartially and was not involved in
the political struggle between the applicant supervisor  and  the  vice
commander.  More importantly, the commander came to his decision before
all the facts were  available,i.e.,  before  the  vouchers  were  fully
reconciled.  He never knew how  much  the  applicant  might  have  been
overpaid, if  anything.   Nor  was  he  aware  of  the  fact  that  the
applicant’s supervisor successfully challenged the disciplinary  action
taken in  the  supervisor’s  case.   They  believe  that  the  evidence
submitted by the applicant objectively and fairly supports  his  stated
belief that he acted reasonably in filing his TDY vouchers as he did.

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.  After reviewing the complete
evidence of record, the majority of the Board believes that there  were
sufficiently contributory factors to question  the  appropriateness  of
the Article 15 action taken against the applicant.  It appears that the
applicant was recalled to active duty under circumstances that set  the
scenario for the issues that occurred.  The decision to bring him  back
to active duty in a TDY status instead of a permanent change of station
status created a situation where he was routinely required  to  perform
short term TDYs while in a long term TDY status.  The majority  of  the
Board does not find the guidance contained in  the  Individual  Reserve
Guide to be completely clear and unambiguous on the  proper  procedures
for filing vouchers in situations like the applicant.  The  applicant’s
supervisor has confirmed that it was office policy that  the  applicant
file his vouchers for TDY from Robins Air Force  Base  with  the  local
Robins finance office.  AFLSA/JAJM states in their evaluation  that  it
is common knowledge within the Reserves that all travel  vouchers  must
be filed  through  Dobbins  Air  Reserve  Base.   However,  it  is  not
addressed what the applicant’s  actions  should  have  been  given  the
guidance provided by his supervisor.   Further,  the  majority  of  the
Board questions why there was not a procedure in place to preclude  the
processing of vouchers filed by Reservist at Robins if, in  fact,  they
were all required to be  filed  through  Dobbins.   It  is  noted  with
interest that the instructions  for  completing  the  DD  Form  1351-2,
Travel Voucher, contained in the Individual Reserve  Guide  states  “Do
NOT send your travel voucher to HQ ARPC or to any other FSO.  If you do
not send the travel voucher to Dobbins, your  travel  voucher  will  be
returned and your payment will be delayed.”   This  obviously  did  not
happen in the applicant’s case.  While this Board  normally  has  great
confidence in the commander’s judgement in cases of  this  nature,  the
majority of the Board believes that the applicant is being held  solely
responsible for what appears to be systemic problems in the  processing
of vouchers that were beyond his control.

In addition, the majority of the Board notes the amount  the  applicant
was overpaid, $406.61 vice the original  estimated  amount  of  $4,134,
creating doubt that the applicant’s actions were deliberately done  for
personal  financial   gain.    Therefore,   given   the   totality   of
circumstances and in the interest of equity and justice,  the  majority
of the Board recommends that  the  record  be  corrected  as  indicated
below.

________________________________________________________________

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  13  April  1998,  and
imposed on 27 April 1998, be set aside 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 2 April 2002, under the provisions of AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Robert S. Boyd, Member

By  majority  vote,  the  Board  voted  to  correct  the  records,   as
recommended.  Mr. Boyd  voted  to  deny  the  applicant’s  request  and
submitted a minority report, which  is  attached  at  Exhibit  F.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 31 Dec 01.
    Exhibit D.  Letter, SAF/MIBR, dated 18 Jan 02.
    Exhibit E.  Letter, Applicant’s Counsel, dated 18 Feb 02.
    Exhibit F.  Minority Report.




                                   PATRICIA D. VESTAL
                                   Panel Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXX, XXX-XX-XXXX


          In Executive Session on 2 April 2002, a majority of the Board
voted  to  grant  the  applicant  relief.   I   disagree   with   their
recommendation.  Military justice is at  issue.   As  such,  the  Board
should not grant relief unless the commander’s  action  was  unjust  or
lacked a factual basis.

           The   applicant   received   an   Article   15   with   four
specifications; it was later upheld on appeal  to  the  Vice  Chief  of
Staff.  Most of the evidence deals with the proper  procedure  to  file
vouchers, at issue in two of the specifications.   In  regards  to  the
issue of knowing where to file his vouchers, guidance provided  to  the
applicant by his supervisor was clearly contrary to that  contained  in
the Individual Reserve Guide.  For that reason, one can assert, as  the
majority  did,  that  applicant  was  either  innocent  of  these   two
specifications or his offense should have  been  handled  by  a  lesser
penalty.  If that were the extent of it, I would not  file  a  minority
opinion even if I felt the Board was  impinging  upon  the  commander’s
military justice prerogative.

          However, I find the evidence persuasive  that  the  applicant
did commit the other two offenses and did  not  effectively  rebut  the
charges, either in his response to the Article 15 or in his application
to the Board.  Regarding the specification that  the  applicant  should
have known of his duty to obtain prior approval  for  dual  lodging,  I
find the evidence compelling that  the  applicant  willfully  committed
this violation.  The evidence shows that his supervisor  requested  and
was denied approval for dual lodging, yet the applicant still processed
his voucher in the belief that he should have been deemed qualified.

          The evidence also substantiates the  specification  that  the
applicant knew or should have known of his duty to obtain and  properly
execute an Air Force Form 988  and  that  he  failed  to  do  so.   The
applicant maintains he executed the AF Form 988s and filed them in  his
personnel folder in the Special Projects Office.  One must question why
he would execute the forms and file them away,  clearly  not  complying
with proper procedures.  He states that he had documented his leave  on
his travel vouchers.  If he felt that this was  the  proper  manner  of
requesting leave, why execute the 988s at all.  His decision to  submit
all of the forms at one  time  to  his  Financial  Service  Office  for
processing after the investigation had started is certainly suspect.

          I do not find the actions of the commander to be  beyond  the
bounds of reasonableness, certainly neither arbitrary  nor  capricious.
The applicant elected to resolve the  allegations  in  the  nonjudicial
forum and vested  his  commander  with  the  responsibility  to  decide
whether he had committed the offenses.  The commander acted within  the
scope of  his  discretionary  authority,  and  the  applicant  has  not
presented a compelling case for relief.  There are insufficient grounds
for the Board to substitute its judgement for that of the commander.



                             ROBERT S. BOYD
                             Panel Member

AFBCMR 01-02200


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 XXXXXXXXXX, , XXX-XX-XXXX, be corrected to show that
the nonjudicial punishment under Article 15, UCMJ, initiated on 13
April 1998, and imposed on 27 April 1998, be, and hereby is, set
aside and expunged from his records, and all rights, privileges,
and property of which he may have been deprived be, and hereby, are
restored.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency