RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03266 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His Article 15, imposed on 10 December 2009, be set aside and all 
references to the nonjudicial punishment, be removed from his 
records. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

There was insufficient evidence to support the commander’s 
finding that he had committed the offenses that led to his 
nonjudicial punishment. The facts do not support the allegation 
that he made a fraudulent claim against the United States or that 
he knew it to be fraudulent. He did not act with the intent to 
defraud the government. He had no reason or motive to do so, he 
had no history of questionable conduct, he did not need the 
money, and the explanations he provided for his conduct are 
credible and supported by the evidence. 

 

In support of his appeal, the applicant provides a statement from 
his counsel, character references, copies of travel vouchers, a 
copy of the Commander-Directed Investigation (CDI), a copy of the 
contested Article 15, and supporting documentation to the Article 
15 action. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the Regular Air Force who was 
released from active duty on 1 March 2012 as a result of the 
Reduction-In-Force Board in September 2011. 

 

While serving on active duty, the applicant’s commander imposed 
nonjudicial punishment on the applicant on 10 December 2009, for 
one specification of making a fraudulent claim against the United 
States, in violation of Article 132, Uniform Code of Military 
Justice (UCMJ), and four specifications of dereliction of duty, 
in violation of Article 92, UCMJ. One of the derelictions of 
duty specifications was for failing to refrain from claiming 
unauthorized travel expenses and the other three dereliction of 


duty specifications were for failing to use his government travel 
card for lodging expenses arising from official government 
travel. 

 

The applicant consulted with a defense counsel and accepted the 
Article 15, waiving his right to demand trial by court-martial. 
He presented written matters to the commander and made a personal 
appearance. On 10 December 2009, the commander lined out three 
specifications alleging dereliction of duty for failing to use 
his government travel card for lodging expenses arising from 
official government travel. The commander also found that the 
applicant had committed the alleged offenses of making a 
fraudulent claim against the United States and dereliction of 
duty for failing to refrain from claiming unauthorized travel 
expenses. The commander imposed punishment consisting of 
forfeiture of $2,361.00 pay per month for two months and a 
reprimand. The applicant appealed the commander’s decision and 
also submitted matters for consideration by the commander on the 
question of whether the commander would file the Article 15 in 
the applicant’s Officer Selection Record (OSR). The commander 
and the appellate authority both denied the applicant’s appeal. 
The commander determined that he would file Article 15 in the 
applicant’s OSR. The Article 15 action was reviewed and 
determined to be legally sufficient. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states that the applicant’s 
allegations of error or injustice focus on the issue of whether 
there is sufficient evidence to support the commander’s findings. 
There is no allegation of error in the processing of the action 
and an examination of the Article 15 did not show any such error. 
When the applicant waived his right to court-martial and accepted 
nonjudicial punishment, he accepted that the commander would be 
the one to make the final determination on guilt and punishment. 
The commander was in the best position to evaluate the evidence 
and the submissions by the applicant in coming to a final 
decision. More to the point, the applicant empowered the 
commander to be the one to make the decision. It does not matter 
that another individual may have evaluated the evidence and the 
applicant’s submissions in a different way. There is no evidence 
that the applicant’s commander was arbitrary or capricious in 
finding the applicant committed the offense. When there is 
competing or contrary evidence, the commander can give whatever 
weight he chooses to the individual pieces of evidence. 
Likewise, the commander gets to judge the credibility of the 
witnesses in the case, including that of the accused. In this 
case, the applicant’s knowledge of the falseness of the claim 
seems to have been the key question in controversy and the 
commander appears not to have given great weight to the 
applicant’s protestation that he did not intend to defraud the 


government. This was within the commander’s discretion and does 
not constitute error sufficient to warrant action by the Board. 

 

The applicant’s defense counsel also alleges error and injustice 
in stating the applicant was not derelict in the performance of 
his duties. The applicant’s commander lined through three of the 
four specifications of dereliction of duty; therefore, this 
allegation of error or injustice relates to the specification 
which states the applicant was derelict in the performance of his 
duty not to claim unauthorized travel expenses. The defense 
counsel argues that the specification is so broad and unspecific 
that the applicant was not put on notice with respect to the 
alleged unauthorized travel expense he had to defend against. 
However, when all of the specifications are looked at together, 
it is clear the applicant knew with some specificity that he was 
accused of claiming unauthorized travel expenses on his 14 April 
2009 travel voucher for a total amount of $1,710.60 and which 
fraudulent amount was alleged to be $145.00. It is also clear 
that this dereliction of duty specification was drafted in 
conjunction with the specification of making a fraudulent claim 
against the United States. The commander’s basis for finding the 
applicant committed this dereliction of duty offense is similar 
to that of the fraudulent claim offense and; therefore, there was 
sufficient evidence for the commander to have found the applicant 
committed the offense. 

 

With regard to the defense counsel’s allegation that the 
dereliction of duty specification was overbroad and unspecific, 
it is important to point out that the commander can impose the 
full range of nonjudicial punishment for even a single 
specification. Even if the commander had not found that the 
applicant had committed the offense of dereliction of duty, the 
commander could have imposed the very same punishment just for 
finding the applicant committed the Article 132, UCMJ, offense of 
making a fraudulent claim. 

 

We find that based on the evidence provided and considering the 
other factors mentioned by the applicant, there was no error or 
injustice in the commander’s finding the applicant committed 
these offenses. Furthermore, the punishment imposed was 
appropriate to the offenses and not unfairly harsh. 

 

The complete JAJM evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 

COUNSEL'S REVIEW OF AIR FORCE EVALUATION: 

 

It does not appear that the author of the advisory opinion 
considered his client’s evidence in any detail. Rather, the 
author makes conclusory statements that are undetermined by the 
evidence of record. The charges the applicant faced would not 
have been brought if the evidence of record had been carefully 
scrutinized. 


 

His client is an exceptional officer and is punctilious in 
complying with regulations. To permit the Article 15 records to 
remain, the Board would have to conclude that, after considering 
all the evidence, this fine officer intended to steal $145.00 
from the government. His client did not do so, had no reason to 
do so, and simply is not the type of person who would do so. 

 

The counsel’s complete rebuttal is at 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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or an injustice. We note 
the applicant’s contention that there was insufficient evidence 
to support fraud; however, after reviewing all the evidence 
provided, we are not persuaded that the nonjudicial punishment, 
imposed on 10 December 2009 was improper. We find no evidence of 
error in this case and after thoroughly reviewing the 
documentation provided in support of his appeal, the Board does 
not believe the applicant has suffered an injustice. 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. The Board does not believe there is 
such showing here. The evidence indicates that during the 
processing of this Article 15, the applicant was offered every 
right to which he was entitled. There is nothing in the evidence 
provided, other than the applicant’s assertions, which would lead 
the Board to believe that the actions by the imposing commander 
were inappropriate or that he did not have access to all of the 
information necessary on which to base his decision. The 
applicant has not provided any evidence showing that the imposing 
commander or the reviewing authority abused their discretionary 
authority, that his substantial rights were violated during the 
processing of this Article 15 punishment, or that the punishment 
exceeded the maximum authorized by the UCMJ. Therefore, in the 
absence of evidence to the contrary, we find no basis to 
recommend granting the relief sought in 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 issues 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-2011-03266 in Executive Session on 23 January 2013, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2011-03266: 

 

Exhibit A. DD Form 149, dated 15 Aug 12, w/atchs. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. Letter, AFLOA/JAJM, dated 7 Nov 11. 

Exhibit D. Letter, SAF/MRBR, dated 18 Nov 11. 

Exhibit E. Letter, Counsel, dated 12 Mar 13. 

 

 

 

 

 

Panel Chair