RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01441
            INDEX CODE:  126.03
            COUNSEL:
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  10 NOV 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15, Nonjudicial Punishment (NJP), imposed on 31 Oct 05  be
removed from his records; or in the alternative, the forfeiture of pay
be reduced.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the Article 15 was unfair and unjust, it was not supported
by  the  evidence,  and  the  imposed  forfeiture  was  excessive  and
disappropriate to the offenses.

He did not appeal, because he did not believe the appellate  authority
could be objective since the current AFMC/IG  is  the  individual  who
administered punishment and the current AFMC/CV was the commander  who
removed him from command.

In  support  of  his  request,  the  applicant  provided  a   personal
statement, a statement by his Defense Counsel, which states  in  part,
the applicant was treated unfairly in regard to the Article 15  action
and that both Article 92 Dereliction of Duty offenses, alleging misuse
of  his  government  travel   card,   are   additional   examples   of
overreaching.  He also provided  a  copy  of  the  Office  of  Special
Investigation (OSI) Report of Investigation  (ROI),  dated  16 Jun 05,
Intent to Impose Nonjudicial Punishment, dated 19 Sep 05,  Article  15
Response Package, dated 31 Oct 05,  a  copy  of  a  Blackberry  Policy
Letter, two  Statements,  a  copy  of  his  Attorney’s  Letter,  dated
28 Oct 06 and two Air Force Form 707s, Officer Performance Reports.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was commissioned a second lieutenant in the Regular  Air
Force on 12 Nov 82, and was progressively promoted  to  the  grade  of
colonel.  He was notified by his commander on 19 Sep 05 that he  would
be offered NJP pursuant to Article 15, UCMJ.

The bases for the action were dereliction of  duty,  in  violation  of
Article 92 UCMJ, and three specifications of wrongfully endeavoring to
impede an investigation, in  violation  of  Article  134,  UCMJ.   The
allegations were based on the applicant’s alleged negligent failure to
review travel vouchers, willful misuse of a government cell phone  and
government travel card for personal use, making a false  statement  to
an OSI agent concerning these infractions, and wrongful suggestions to
and intimidation of a witness.

The applicant consulted with counsel, waived his right to demand trial
by court-martial, and accepted nonjudicial punishment proceedings.  He
submitted written statements  in  his  own  behalf  and  requested  an
appearance before the commander.

On 31 Oct 05, his commander found that he committed one or more of the
offenses.  Specifically, the commander found he committed all  of  the
offenses alleged with the exception of the Article 134, Obstruction of
Justice/Impeding an Investigation violation.  His punishment consisted
of forfeiture of $3,983 pay per month for two months and a reprimand.

He currently serves on active duty in the grade of colonel.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states in part, the applicant  has
not provided a sufficient basis to warrant setting aside  the  Article
15 action, and does not demonstrate an equitable basis for relief.  He
has provided no evidence of a clear error or injustice related to  the
nonjudicial punishment action.  Absent a clear error or injustice, the
applicant should not prevail.  Procedural and substantive requirements
having been met in this Article 15 action, the applicant’s request for
relief is without legal or factual justification.

A commander considering  a  case  for  disposition  under  Article  15
exercises personal discretion in  evaluating  the  case,  both  as  to
whether nonjudicial punishment is appropriate, and if so,  as  to  the
nature and amount of punishment.  Unless a  commander’s  authority  to
act in a  particular  case  is  properly  withheld,  that  commander’s
discretion is unfettered so long as  the  commander  acts  within  the
limits and parameters of the  commander’s  legal  authority.   Service
members must first be notified by their commanders of  the  nature  of
the charged offense, the evidence supporting the offense, and  of  the
commander’s intent to  impose  nonjudicial  punishment.   The  service
member may then consult with a defense counsel to  decide  whether  to
accept nonjudicial punishment proceedings or demand  trial  by  court-
martial.

Accepting the proceedings is simply a choice of forum; it  is  not  an
admission of guilt.  Nonjudicial  punishment  does  not  constitute  a
criminal  conviction.   A  member  accepting  nonjudicial   punishment
proceedings may have a  hearing  with  the  imposing  commander.   The
member may have a spokesman at the hearing, may request that witnesses
appear and testify, and may  present  evidence.   The  commander  must
consider any information offered  during  that  hearing  and  must  be
convinced by reliable evidence that the member committed  the  offense
before  imposing  punishment.   Members  who  wish  to  contest  their
commander’s determination or the severity of  the  punishment  imposed
may appeal to the next higher commander.  The appeal authority may set
aside the nonjudicial punishment action,  set  aside  the  punishment,
decrease its severity, or deny the appeal.

Commanders considering  nonjudicial  punishment  should  consider  the
nature of the offense, the record of the service member, the need  for
good order and discipline, and the effect of good order and discipline
on  the  service  member  and  the  service  member’s  records.    The
applicant’s commander, having applied that standard to the  individual
circumstances of the applicant’s  case,  determined  that  Article  15
action was warranted.  The applicant waived  his  right  to  trial  by
court-martial and  chose  instead  to  accept  nonjudicial  punishment
proceedings, placing the determination of guilt or innocence, as  well
as punishment, in his commander’s hands.

The applicant should not prevail absent clear error or injustice.  The
commander was charged with weighing all the  evidence  before  her  to
make  her   decision.    The   commander   ultimately   resolved   the
specifications concerning the alleged violations of  Articles  92  and
107 against the applicant,  and  resolved  the  alleged  violation  of
Article 134 in his favor.  There is no evidence to  believe  that  the
commander’s  decisions  were  either  arbitrary  or  capricious.   The
commander reviewed an extensive  report  of  investigation  containing
numerous witness statements and including applicant’s own  admissions.
There is no indication  that  the  commander’s  determination  of  the
applicant’s culpability was based on anything other than the evidence,
and the record does not corroborate his allegation that the Article 15
action for the aforementioned offenses was a pretext to punish him for
a suspected incident of adultery.

Although  applicant  contends  the  evidence  does  not  support   the
imposition of nonjudicial punishment, the evidence that the  commander
reviewed prior to making her decision indicates otherwise.

He does not deny that the acts for  which  he  was  punished  actually
occurred, he simply argues why  he  does  not  believe  he  should  be
punished.  He admits that  he  did  not  review  his  travel  vouchers
properly, and that he is ultimately responsible for  the  errors  that
were discovered.  He admits that he used the government cell phone for
personal use, but he states he was under the mistaken belief  that  he
could do so as long as he  did  not  exceed  the  allotted  number  of
minutes in the calling plan.  He does not dispute using his government
travel card when he was not in temporary duty  (TDY)  status,  but  he
states that he did not seek reimbursement for the charges and he  paid
the balance immediately.  The same  applies  for  the  false  official
statement allegations.   He  does  not  necessarily  deny  making  the
statements; he simply has explanations as to why the  statements  were
not false.  The commander considered all the  evidence  presented  and
ultimately decided he was guilty by a preponderance of the evidence.

Commanders on the scene have first—hand access to facts and  a  unique
appreciation for the need of morale and discipline  in  their  command
that even the best intentioned higher headquarters  cannot  match.   A
set aside of a commander’s action should  only  be  granted  when  the
evidence demonstrates an error or a clear  injustice.   The  applicant
availed himself  of  his  opportunity  to  present  his  case  to  the
commander, who had the most  relevant  knowledge  of  the  information
surrounding the Article 15 action.   The  evidence  indicates  he  was
accorded all the rights to which he was  entitled  under  Article  15,
UCMJ.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states in part, the acts described in paragraph three of
the advisory opinion, simply do not amount to a crime punishable under
the UCMJ.  The allegation that he did not review his  travel  vouchers
properly is without merit.  Defense Exhibit E in the original  defense
Article 15 submissions state, of the vouchers he submitted during  the
timeframe, only one contained an error attributable to missing lodging
receipts,  for   which   the   technician   requested   and   received
clarification.  Contrary to  the  Article  15  specification  and  Mr.
P__________’s statement that he did not review his vouchers, there  is
also evidence in the package indicating he gave his vouchers  a  quick
review before signing, although he acknowledged his executive  officer
prepared the vouchers.  One of the specifications of  wrongful  travel
card use relates to an additional nights lodging in Georgia.   He  was
on TDY orders during the time of this alleged offense.

What is important to note is the fact that he was on  TDY  orders  for
the aforementioned two nights lodging and did not use the card for any
longer period of time than he was authorized.  He simply used the card
for lodging twice at the same location, because  he  was  not  feeling
well enough to depart after  the  first  nights  lodging  in  Georgia.
Similarly, the JAJM response stresses the fact that he  did  not  deny
the acts for which he was punished actually occurred.   He  does  deny
very strongly the acts for  which  he  was  punished  amount  to  UCMJ
violations.  A  fair  reading  of  all  the  facts  and  circumstances
surrounding  this  Article  15  action  leads  to  only  one   logical
conclusion.  He has suffered a  significant  injustice,  both  in  the
findings of guilty for the charges and specifications as well  as  the
amount of forfeitures imposed as punishment.

The applicant’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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant’s  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we did not find his assertions nor the  documentation
submitted in support of his appeal, sufficiently persuasive to warrant
corrective action.  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.  We have no  such  showing  here.
Furthermore,  we  find  no  evidence  that  during   the   nonjudicial
proceedings he was denied  any  rights  to  which  entitled.   To  the
contrary, the evidence before us indicates that he was represented  by
counsel, waived his  right  to  demand  trial  by  court-martial,  and
accepted the Article 15 process as the forum  for  resolution  of  the
charged offenses.  Having exhausted that forum and not having received
a favorable result, he now contends the acts for which he was punished
did not rise to a level amounting to UCMJ  violations.   We  disagree.
Based on the contents of the OSI Report of Inquiry, we believe it  was
reasonable for the  commander  to  initiate  nonjudicial  proceedings.
Moreover, we believe the appropriate time for the  applicant  to  have
raised this issue was when first offered the nonjudicial  proceedings.
Had he truly felt the  charges  were  not  supported,  he  could  have
demanded a  trial  by  court-martial,  with  its  higher  standard  of
evidence, and contested the charges against him,  rather  than  accept
the nonjudicial proceedings.  Further, although he contends he did not
appeal the punishment because the appellate  authority  could  not  be
objective,  he  provides  no  evidence  to  support  this  contention.
Therefore,  in  the  absence  of  evidence  there  was  an  abuse   of
discretionary authority, or that his substantial rights were violated,
we find no basis upon which to favorably consider 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  issue(s)   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-
2007-01441 in Executive  Session  on  27  September  2007,  under  the
provisions of AFI 36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Karen A. Holloman, Member
                 Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 12 Jun 07.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Jun 07.
    Exhibit E.  Letter, Applicant, dated 17 Jul 07.




                                   MICHAEL J. MAGLIO
                                   Panel Chair