RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02816 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His court-martial punishment and the debt imposed by his 
conviction be set aside. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His court-martial conviction was a result of a misunderstanding 
of the Joint Federal Travel Regulations (J.F.T.R) and false 
testimony. 

 

He believes that his conviction and debt in the amount of 
$28,907.28 was based on a misunderstanding of JFTR, 
specifically, as to what constitutes “Home of Record (HOR).” 
Prior to entering a tour of extended active duty (EAD) he 
changed his HOR to outside the commuting distance of the base 
and was entitled to per diem. 

 

His former girlfriend made false testimony at his court-martial 
as to whether or not he had changed his HOR, which subsequently 
led to his conviction. 

 

In support of his appeal, the applicant provides a personal 
statement; copies of extracts from the JFTR, a similar court-
martial case, and a letter to the Court-Martial Convening 
Authority. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 21 June 2010 and l0 - 13 August 2010, the applicant, then a 
technical sergeant, 'was tried at a general court-martial. The 
applicant was accused of presenting vouchers to finance 
personnel for per diem, lodging and mileage expenses that were 
false and fraudulent, which led to him being paid over 
$28,000.00 to which he was not entitled. 

 


The applicant was eventually charged with one specification of 
making a false claim against the United States, in violation of 
Article 132, and one specification of larceny, in violation of 
Article 121, Uniform Code of Military Justice (UCMJ), the 
applicant pled not guilty to the charges and the military judge 
dismissed the violation of Article 132 after a defense motion to 
dismiss for failure to state a claim. He was found guilty of 
the violation of Article 121 and sentenced to 30 days 
confinement, forfeiture of all pay and allowance, hard labor 
without confinement for 60 days, a $1,000.00 fine, and in the 
event the fine was not paid, to be confined for one month in 
addition to the adjudged 30 days confinement, and reduction in 
grade to airman basic. 

 

On 17 Dec 10, the convening authority approved only so much of 
the sentence as provided for 30 days confinement, forfeiture of 
all pay and allowances, for 23 days, forfeiture of $964.00 pay 
per month thereafter until 17 Dec 10, a fine of $1,000.00 and to 
serve additional confinement for one month in the event the fine 
was not paid, and reduction to airman basic. On 28 Jan 11, the 
office of The Judge Advocate General examined the record of 
trial in the applicant's case and found it to be supported in 
law. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AF/JAJM recommends denial. In discussing the case, they note, 
the applicant alleges both error and injustice in his court-
martial. His allegation is based on an undisputed 
interpretation of provisions under the JFTR. When a member of 
the Air National Guard (ANG) receives orders to come onto 
training (or seasoning) duty, certain financial benefits, such 
as per diem and mileage, are based on the applicant's HOR. If 
the member’s HOR is within commuting distance of the duty 
location, the member is not authorized these additional 
benefits. If, however, the member's HOR is outside the 
commuting distance, the member is entitled to per diem and other 
additional financial benefits. 

 

In the applicant's case, he was on training orders from 
28 Jan 08 to 24 Sep 08. At the time, his HOR was within 
commuting distance, therefore, he did not receive additional 
financial benefits. After he completed his training, he 
relocated his home to Grand Blanc, Michigan, which was outside 
the commuting distance. The applicant subsequently received 
training orders and claimed, rightfully, he says, additional 
financial benefits since his HOR was now outside the commuting 
distance. In addition, the applicant also points out that he 
maintained a separate residence closer to base, which the JFTR 
allows. 

 


He states that his case revolves around the understanding and 
misunderstanding of the JFTR. While there was not really a 
misunderstanding regarding the provisions of the JFTR, an expert 
witness testified at trial as to the provisions of 

the JFTR and there was no dispute about whether the applicant 
would have been entitled to the benefits if his HOR was truly as 
he claimed. In this case, the fact is the residence that he 
claims as his HOR belonged to someone that he claims was his 
former girlfriend; however, she testified that they never dated 
and that he never lived at her residence. He believes she lied 
because of jealousy over his new girlfriend. 

 

The question in the applicant's case is not of law as he 
alleges, but one of fact. His alleged former girlfriend 
testified that she did not date the applicant and he never lived 
at her residence. On cross-examination, the defense pointed out 
inconsistencies in the alleged former girlfriend’s testimony. 
The members were faced with a question of which version of 
events to believe. During closing arguments, defense argued the 
alleged girlfriend was lying because she had a grudge against 
the applicant. In finding the applicant guilty of the offense 
of larceny, it is clear that the members found her version of 
events to be credible. A review of the Record of Trial (ROT) 
shows sufficient evidence to support the members' finding of 
guilty. While her testimony showed some inconsistencies, there 
was no inconsistency in her assertion that the applicant had not 
lived at her residence with her. The information the applicant 
now provides about her being jealous because of another 
girlfriend was not before the members because the applicant did 
not testify. Furthermore, the applicant states this information 
in his application; however, he does not provide any 
documentation or other information to support his assertion that 
she was lying because she was jealous. 

 

In addition, the applicant cites the case of United States v. 
Perry, an unpublished opinion from the Air Force Court of 
Criminal Appeals. In the cited case, the court relied on the 
same provisions of the JFTR that are at issue in the applicant’s 
case. However, the Court found that since the member’s HOR was 
outside the reasonable commuting distance that the member was 
entitled to per diem and other benefits and she was not guilty 
of larceny. In that case there was no factual dispute of the 
HOR. Contrast that situation with the applicant’s where there 
was a genuine factual dispute over whether the applicant could 
claim that residence as his HOR. 

 

The complete AF/JAJM evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

He notes that it appears the government, in its advisory opinion 
addresses essentially four points, specifically: 1) that there 


was no misunderstanding of the JFTR involved in this case; 2) 
that the allegation of his former girlfriend lying on the stand 
because she was a jealous ex-girlfriend is new and was not 
provided at trial; 3) that there was no inconsistency in her 
assertion that he lived with her; and 4) that he has been 
afforded all of the procedural rights of the court-martial and 
appellate process and addresses them in that order. 

 

He notes the government contends that there exists in this case 
no misunderstanding of the JFTR by the prosecutors and the jury. 
However, he noted in his initial application, when the 
prosecution charged him, it did not understand the distinctions 
between HOR and residence. As evidence of the government's 
misunderstanding of the distinction between HOR and residence, 
the prosecution actually failed to state an offense in one of 
their charges, which the Military Judge in this case ultimately 
dismissed. It was with this misunderstanding of the JFTR the 
government proceeded to trial. The government's 
misunderstanding can further be seen in their closing argument 
in which they state that his former girlfriend’s testimony could 
be completely disregarded and still find him guilty repeatedly 
implies that a showing of a local residence was proof that Grand 
Blanc was not the HOR also confused the difference between HOR 
with residence. He notes that finance officials noted that the 
JFTR can be understood through, "common sense, common language, 
and common terms. The JFTR does not have to define everything 
that is common sense ...HOR is common sense ...." Such 
arguments were made throughout trial and confused the issue for 
the jury. This misunderstanding by the members revealed itself 
plainly when members came back from deliberations and asked to 
hear portions of finance officials’ testimony, stating, "The 
portions we are interested in are any of the HOR discussions, as 
well as entitlements. We feel like we understand the testimony 
as it pertains to the travel vouchers and the numbers and what 
are those [sic] associated with and things like that, but we 
would definitely like to hear the testimony associated with HOR 
as well as entitlements." It is notable that, at this point, 
members had already been deliberating approximately two hours. 

 

Additionally, the government suggests that the issue of his 
former girlfriend lying on the stand because she was a jealous 
ex-girlfriend is new and was not provided at trial. 
Respectfully, that is incorrect and a review of the previously 
provided ROT shows this is not a new issue at all. Indeed, this 
issue has been central to this case from the very beginning, 
which the government even argued against in its closing 
argument. Further, a review of the ROT shows that there was 
evidence produced at trial that she and the applicant were in a 
relationship (including emails and Facebook messages) and 
evidence to suggest that they were no longer in a relationship 
to include her overall demeanor on the stand and unwillingness 
to talk to defense counsel. So while the government suggests 
that the reason for the falling out is "new," in truth, this is 
not new evidence. 


 

This brings us to the next issue: The government contends, 
"There was no inconsistency in her assertion that the applicant 
had not lived at her residence with her." That is false. In 
fact, a review of the ROT shows there was written contradicting 
evidence, to include a United States Post Office Change of 
Address form, which contradicted that he did not live there. As 
noted in his initial submission. 

 

Finally, what is conspicuously omitted from the government's 
evaluation is any discussion of the puzzling sentence adjudged 
in this matter. The applicant references his initial submission 
that discussed the court member’s doubt regarding his guilt, 
which he believes is supported by the “startlingly light” 
sentence he received in view of the offense he is alleged to 
have committed. 

 

The applicant’s complete response, with attachments, 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. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinion and recommendation 
of the Air Force office of primary responsibility and adopt 
their rationale as the primary basis for our conclusion that the 
applicant has not been the victim of an error or injustice. The 
applicant goes to great length to call into question the finding 
of guilt by the court. However, even if we were to find merit 
in some of the arguments he makes, we do not find that the 
evidence supports that the final decision of guilty the court 
reached was not beyond a reasonable doubt. The applicant’s 
disagreement with the evaluation prepared by AFLOA is not 
supported by fact, but, rather, the applicant’s uncorroborated 
assertions. As such, as noted by AFLOA, we believe the 
applicant was afforded all of the procedural rights offered by 
the court-martial and appellate process. Therefore, based on 
the available evidence of record, 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2011-02816 in Executive Session on 10 April 2012, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 6 Jul 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 11 Aug 11. 

 Exhibit D. Letter, SAF/MRBR, dated 19 Aug 11. 

 Exhibit E. Letter, Applicant, dated 8 Sep 11, w/atchs. 

 

 

 

 

 Panel Chair