RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01451
            INDEX CODE:  126.04

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 imposed on  26 Sep  02  be
set aside and removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Article 15 specifications that he willfully  intended  to  deceive
and that he was derelict in his duties through  negligence  have  been
proven by subsequent investigations, documentation, and guidance to be
incorrect.

In  support  of  his  appeal,  the  applicant  provides  an   expanded
statement, a redacted Inspector General (IG) Report of  Investigation,
Department  of  Defense  (DOD)  Report  of  Investigation,  supportive
statement, previous Board decision, documentation  pertaining  to  the
Article 15, and other  documents  associated  with  the  matter  under
review.

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

_________________________________________________________________

STATEMENT OF FACTS:

In Apr 02, an Air Force  IG  investigation  concluded  that  over  200
members of the Combined Air Operations Center  6  (CAOC-6),  including
the  Deputy  Commander  were  inappropriately  paid  Combat  Zone  Tax
Exclusion (CZTE) benefits during the period 1 Jan  01  through  30 Dec
01.  The IG conclusion was largely based upon  its  interpretation  of
the existing rules related to entitlement of CZTE;  specifically,  its
interpretation of whether the  temporary  duty  (TDY)  assignments  to
Incirlik Air Base (AB), Turkey, were in direct  support  of  Operation
Northern Watch.  The IG concluded the applicant knew  or  should  have
known that his TDY travel to Incirlik, and that of  his  subordinates,
would not fall under the CZTE.

On 26 Sep 02, the applicant received an Article 15 for two  violations
of Article 92, dereliction of duty, for events that  transpired  while
he was serving as Deputy Director of Operations  with  the  CAOC-6,  a
NATO operation located at  Eskisehir,  Turkey.   The  first  violation
concerned his receiving CZTE benefits for his TDY travel  to  Incirlik
AB by claiming that his actions were in direct  support  of  Operation
Northern Watch.  The second violation concerned his  authorization  of
his subordinates to receive  CZTE  benefits  when  they  went  TDY  to
Incirlik AB.  He was given punishment of a forfeiture of 3,565.00  per
month for two months and a formal reprimand.

By memorandum, on 8 Apr 03, the Assistant Secretary of the  Air  Force
for Financial Management and Comptroller, clarified the interpretation
of the Air Force IG  audit  and  stated  that  the  over  200  members
identified by the Air Force IG audit were actually  entitled  to  CZTE
benefits.  These members included the applicant.  The memorandum noted
that the guidance for  applying  the  subjective  standard  of  direct
support of combat zone operations during the period covered by the Air
Force IG audit was ambiguous and proved to be elusive.

On 14 Jun 04, the applicant submitted a request for set-aside  of  the
Article 15 to the 11th Wing Commander.  The request  did  not  contain
any new information other than a DOD IG reexamination of the Air Force
IG audit based upon an appeal by the former Deputy Commander of  CAOC-
6, who was the applicant’s supervisor.  The DOD IG was directed solely
at the Deputy Commander of CAOC-6 and did not address  the  particular
facts of the applicant.  On 8 Oct 04, the request for set aside of the
Article 15 was denied, as no new factual information was presented.

Based on his application, dated 15 Feb 05, the  Air  Force  Board  for
Correction of Military Records (AFBCMR) concluded  the  applicant  was
the victim of an error and  injustice  by  the  Air  Combat  Financial
Services Division’s decision that he was not entitled to CZTE benefits
during  his  trips  to  Incirlik  AB.   Accordingly,  his  record  was
corrected and he was paid per diem in the amount of $17,555.00

As a result of the DOD IG  reexamination  and  ruling  by  the  AFBCMR
regarding the CZTE eligibility, on 9 Sep 05, the  AFBCMR  removed  the
Article 15 from the records of the former Deputy Commander of CAOC-6.

On 30 Sep 06, the applicant was relieved from active duty and  retired
for length of service, effective 1 Oct 06, in the  grade  of  colonel.
He was credited with 27 years, 4 months, and 1 day of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends approval noting  the  applicant  was  originally
found guilty of the Article  92  infractions  by  the  Commander,  Air
Combat Command, based upon findings of the  Air  Force  IG  inspection
report which concluded the applicant, his supervisor,  and  the  other
approximately 200 affected personnel with the CAOC-6 traveling TDY  to
Incirlik were not entitled to CZTE benefits.  This conclusion was  the
direct underlying basis for the Article  92  infractions.   Since  the
issuance of the Article 15, the Assistant Secretary of the  Air  Force
and the AFBCMR have both concluded the applicant and other members wee
actually entitled to CZTE benefits and that the applicant suffered  an
injustice.  AFLOA/JAJM indicated that while the action  of  the  Board
might have resulted in a financial windfall  for  the  applicant,  his
current request to set aside the Article 15 is  the  more  appropriate
remedy in light of the new facts.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  27
Jun 08 for review and response within 30 days.  As of  this  date,  no
response has been received by this office (Exhibit D).

_________________________________________________________________

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 error or injustice.  After a thorough review of the facts
and circumstances of this  case,  we  are  persuaded  that  corrective
action is warranted.  We note the applicant received  the  Article  15
for dereliction of duty for receiving and authorizing his subordinates
to receive CZTE benefits for which they were not  entitled.   However,
the Assistant Secretary of the Air Force for Financial Management  and
Comptroller subsequently determined the applicant and members  of  his
organization were entitled to the aforementioned benefits.  Therefore,
we agree with AFLOA/JAJM’s recommendation to expunge  the  Article  15
from the applicant’s records.   Accordingly,  we  recommend  that  his
records be corrected as set forth 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, imposed on 26 Sep 02,  be  declared
void and expunged from his records, to include his  Officer  Selection
Record (OSR), and all rights, privileges, and property of which he may
have been deprived be restored.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2008-01451 in Executive Session on 11 Feb 09, under the provisions  of
AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Debra M. Czajkowski, Member
      Mr. Anthony P. Reardon, Member

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

     Exhibit A.  DD Form 149, dated 1 Apr 08, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLOA/JAJM, dated 16 Jun 08.
     Exhibit D.  Letter, SAF/MRBR, dated 27 Jun 08.




                                   MICHAEL J. NOVEL
                                   Panel Chair






AFBCMR BC-2008-01451




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, imposed on 26 September 2002, be,
and hereby is, declared void and expunged from his records, to include
his Officer Selection Record (OSR), and all rights, privileges, and
property of which he may have been deprived be restored.







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency