RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2012-02572
							COUNSEL:                      
                             		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  Void and remove his Letter of Reprimand (LOR), dated 7 July 
2010 and any references thereto from his official military 
personnel record.  

2.  Redact his Officer Performance Report (OPR) with the close-
out date of 11 August 2010 to eliminate any references to the 
LOR, referral report, or contracting improprieties.

3.  Void and remove the Article 15, Uniform Code of Military 
Justice (UCMJ) punishment, dated 26 May 2011, and any references 
thereto from his official military personnel record.

4.  Redact the OPR with the close-out date of 11 August 2011 to 
eliminate any references to the Article 15, referral report, or 
the improper transport of pets on military aircraft.  

5.  He be promoted to the rank of lieutenant colonel (O-5) with 
full back pay and allowances.
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APPLICANT CONTENDS THAT:

The imposed punishment, as a result of the LOR, Article 15, and 
referral OPRs; has served its intended purpose and the removal 
of these records would serve in the best interest of the Air 
Force.  

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

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STATEMENT OF FACTS:

The applicant is currently serving as a pilot on active duty in 
the Regular Air Force in the grade of major (O-4).  

An investigation by the Office of Special Investigations (OSI) 
revealed the applicant falsified information while participating 
on the source selection board for the MacDill AFB Bird/Aircraft 
Strike Hazard (BASH) Program contract.  As a result, he received 
an LOR for improper contracting procedures, which is a criminal 
offense under Article 92, 133, and 107 of the UCMJ.  He was also 
given an Unfavorable Information File (UIF) and a subsequent 
referral OPR closing for the period 12 August 2009 through 
11 August 2010.  His referral OPR commented upon him receiving 
an LOR during the reporting period for improper contracting 
procedures.  

On 26 May 2011, the applicant was offered nonjudicial punishment 
under Article 15, UCMJ for being charged with one specification 
of dereliction of duty, in violation of Article 92, UCMJ, in 
that he transported seven pets, including four dogs, two cats, 
and a rat on board a KC-135 mission from MacDill Air Force Base 
(AFB), Florida to Joint Base Pearl Harbor-Hickam, Hawaii.  

The applicant was afforded the opportunity to consult with 
defense counsel, accepted the Article 15, and waived his right 
to demand trial by court-martial.  He elected to present written 
matters and made a personal appearance before the commander.  On 
13 June 2011, the 13th Air Force Commander decided that the 
applicant had committed the offense and imposed punishment 
consisting of a forfeiture of $1,500 pay per month for two 
months and a reprimand.  The applicant appealed the commander’s 
decision; however, on 22 June 2011, his appeal was denied.  The 
Article 15 action was reviewed and determined to be legally 
sufficient.  

The applicant received another referral OPR for the period 
12 August 2010 through 11 August 2011 for violating Article 92 
of the UCMJ; specifically for dereliction in the performance of 
duties for willfully failing to make reasonable efforts to 
verify that transportation of his seven pets on a military 
aircraft was authorized, and willfully failing to undergo normal 
processing procedures that would have prevented such 
transportation.  

The remaining relevant facts, extracted from the applicant’s 
military service records, are contained in the evaluations by 
the Air Force offices of primary responsibility at Exhibits C 
through F.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant does 
not allege error in how the Article 15 was processed.  A review 
of the Air Force Form 3070, Record of Nonjudicial Punishment 
Proceedings, indicates his rights were observed throughout the 
process of the Article 15.  The commander, at the time of the 
Article 15, had the best opportunity to evaluate the evidence in 
the case.  The applicant raised the same arguments in his 
defense of the Article 15 with his commander, and with his 
commander’s superior on appeal.  The commander exercised the 
discretion that the applicant granted him when the applicant 
accepted the Article 15 and found nonjudicial appropriate in 
this case.  Moreover, the commander’s decision was scrutinized 
by the applicant’s exercise of his right to appeal.  It is 
notable that in the applicant’s appeal, he apologized to the 
commander for his actions acknowledging the harm they cause to 
the good order and discipline of the Air Force.  Further, he 
wrote that he did not believe the punishment imposed was “unfair 
or unnecessarily harsh.”  In his appeal, he simply asked the 
13th Air Force Commander to suspend the punishment, so that he 
may have another opportunity to prove himself.  The legal review 
process showed that the commander did not act arbitrary or 
capriciously in making his decision.  

The applicant does not make a compelling argument that the Board 
should overturn the commander’s original, nonjudical punishment 
decision on the basis of justice.  The commander’s ultimate 
decision on the Article 15 action is firmly based on the 
evidence of the case and the punishment decision was well within 
the limits of the commander’s authority and discretion.  

The complete JAJM evaluation is at Exhibit C.  

AFPC/DPSIM recommends denying the applicant’s request to 
permanently remove his LOR and Unfavorable Information File 
(UIF).  There is no evidence that indicates the commander 
inappropriately processed the applicant’s LOR or UIF.  The 
commander was well within his authority to take disciplinary 
action as he saw fit.  Additionally, the evidence indicates the 
actions were documented as required by the Air Force Instruction 
(AFI).  In accordance with AFI 36-2907, paragraph 1.9, the 
commander may remove a UIF and its documents when early removal 
is clearly warranted.  It is apparent in this case that the 
commander did not consider early removal, as was his 
prerogative.  

The complete DPSIM evaluation is at Exhibit D.  

AFPC/DPSID states that based on the legal sufficiency pertaining 
to the issuance of the LOR/UIF and Article 15 punishment, they 
recommend denying the applicant’s request to void and remove the 
contested OPRs.  The applicant has not provided compelling 
evidence to show that the reports are unjust or inaccurate as 
written.  To void these reports would remove the accountability 
of the applicant for the offenses he committed.  

The complete DPDIS evaluation is at Exhibit E.  

AFPC/JA recommends denial.  JA states they concur with the other 
advisories and write only to add further comment.  In the 
counsel’s brief, she initially tells the Board that the LOR, 
Article 15 punishment, and referral OPRs that the applicant 
received had served their intended purpose, and that removal of 
these documents from the record would “serve the best interest 
of the Air Force.” She refers to the documents’ continued 
presence as “unjust,” and at the conclusion of the brief, she 
requests the Board “right the wrong that has been done to him in 
the interest of justice and equity…”  This argument would 
suggest that the applicant is seeking relief on the basis of 
injustice rather than error.  Yet the bulk of the brief is spent 
arguing the sufficiency of the evidence to support those adverse 
actions; i.e., applicant argues error, claiming that a 
preponderance of evidence does not support the allegations of 
wrongdoing underlying the two incidents that formed the basis 
for the LOR, Article 15, and OPRs.  In fact the applicant’s 
theory is that all others are primarily to blame for the 
misconduct that occurred, and that he was a victim of these 
other persons’ wrongdoing.  Suffice to say, the evidence in both 
instances is more than sufficient to support the adverse actions 
and referral OPRs.  While others may have had a role, the 
applicant’s culpability has been fully established.  If nothing 
else, common sense would dictate that the applicant’s actions in 
disclosing contract source selection information, showing 
obvious favoritism in steering the contract award and, 
falsifying an official document by backdating the Source 
Selection Briefing Certificate, were wrongful-showing poor 
judgment, lack of integrity, and poor “officership.”  Likewise, 
the applicant’s culpability regarding the unauthorized shipment 
of pets on a government aircraft was clearly proven by a 
preponderance of evidence, as discussed in the AFLOA/JAJM 
advisory.  

The applicant has also failed to establish that the continued 
presence of the contested documents in his record constitutes an 
injustice.  What the evidence does establish is that the 
applicant committed acts of wrongdoing, that the adverse actions 
taken in response thereto were proper and appropriate, and that 
his continued refusal to take responsibility for his actions 
belies any notion that he has learned from his mistakes and 
should have his military record cleared.  In short, the 
applicant has proven neither an error nor injustice in his 
appeal.  

The complete AFPC/JA evaluation is at Exhibit F.  

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COUNSEL'S REVIEW OF AIR FORCE EVALUATIONS:

Request the Board disregard the advisory opinions and grant the 
requested relief.  Assuming the purpose for the advisory 
opinions is to provide the Board with an analysis by subject 
matter experts, the provided opinions fail in that regard.  It 
appears the authors did not conduct any analysis, review the 
evidence in the case, or even engage in critical thinking.  They 
merely state the incorrect premise that the regulations allow 
commanders unfettered discretion in offering disciplinary 
action, the commanders are always right, and if the action had a 
legal review, then it must be legal.  The fact that the Board 
exists to exercise independent discretion in reviewing 
commander’s and legal advisor’s actions reflects the reality 
that abuses of discretion do occur.  Commanders are not judges, 
may not have much experience in meting out discipline, and may 
not understand how to weigh evidence or what is meant by the 
burden of proof.  

It is painfully evident in her client’s case that he received 
disciplinary action not because he committed criminal 
infractions, but because he inadvertently embarrassed the 
command.  He should not have been found guilty of a dereliction 
of duty because to the extent he had a duty; he acted as a 
reasonable prudent person.  In consideration of the applicant’s 
stellar duty performance, to utilize this severe of a punishment 
and irreparably damaging his career doesn’t make sense.  Charges 
should be selected and drafted to reflect misconduct, not to 
punish mistakes or misunderstandings.  The circumstances that 
led to his LOR and Article 15 were the result of a rush to 
judgment and an attempt to blame him for what in reality were 
systemic failures to follow procedures and to adhere to 
established standards.  The contested documents should be 
removed from her client’s records as being unjust, erroneous, 
and not in the best interest of the service member or the United 
States Air Force.  

The Counsel’s complete rebuttal is at Exhibit H.  

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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 took 
notice of the applicant's complete submission in judging the 
merits of the case; however, we agree with the opinions and 
recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion the applicant has not been the victim of an error or 
injustice.  We note the applicant’s contentions that the LOR, 
Article 15 punishment, and referral OPRs have served their 
intended purpose and that removal of these documents from the 
record would “serve the best interest of the Air Force;” 
however, we are not persuaded by the evidence and counsel’s 
arguments that the actions taken against the applicant in this 
case were arbitrary, capricious or not a reasonable response to 
the applicant’s offenses.  While the impact of these actions on 
the applicant’s career may be regrettable, we do not find the 
actions serve to make the applicant the victim of error or 
injustice.  Therefore, in the absence of evidence to the 
contrary, we do not find it in the interest of justice 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.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-02572 in Executive Session on 29 May 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-2012-02572:

Exhibit A.  DD Form 149, dated 29 May 12, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFLOA/JAJM, dated 16 Jul 12.
Exhibit D.  Letter, AFPC/DPSIM, dated 9 Jan 13.
Exhibit E.  Letter, AFPC/DPSID, dated 24 Jan 13.
Exhibit F.  Letter, AFPC/JA, dated 8 Feb 13.
Exhibit G.  Letter, SAF/MRBR, dated 14 Feb 12.
Exhibit H.  Letter, Counsel, dated 28 Feb 13.




                         
Panel Chair
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