RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01226
XXXXXXX	COUNSEL:  XXXXXXXX
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The Nonjudicial Punishment (NJP) imposed on 5 Jan 11, be set 
aside; and all entries and references related to the allegations 
be removed from his official military record.

2.  The adverse comment in Section V, Additional Rater Overall 
Assessment, and the mark of “Does Not Meet Standards” under 
Section IX.5, Performance Factors, be removed from his referral 
Officer Performance Report (OPR) for the period 7 Jun 10 thru 
6 Jun 11.

3.  He be restored of all pay, allowances, entitlements, rights 
and privileges, affected by the 5 Jan 11 NJP and Referral OPR.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was not willfully or negligently derelict in his duties as 
his claims for reimbursement related to taxi expenses were made 
because he understood he was entitled to receive reimbursement.  
The word negligently means “an act or failure to act by a person 
under a duty to use due care, demonstrate a lack of that degree 
of care which a reasonably prudent person would have used under 
the same similar circumstances.”  

He was never told not to make these types of claims.  A 
reasonable person would not know these types of claims could not 
be reimbursed.  In his squadron, there were no definitive 
guidelines provided regarding the use of taxis, and had he been 
provided this guidance he would not have broken the rules.

No one ordered or requested that he “refrain from claiming 
reimbursements” for taxi expenses.  In order to be found guilty 
of dereliction of duty it must be shown that he reasonably 
should have known of his duty. 

He appeared before his commander for disciplinary proceedings 
under Article 15, Uniform Code of Military Justice (UCMJ) and 
was charged with, and found guilty of, two violations of Article 
92: (1) dereliction of duty by willful failure to refrain from 
claiming reimbursement for taxi expenses, and (2) dereliction of 
duty by negligent failure to refrain from claiming reimbursement 
for taxi expenses.  The punishment imposed was forfeiture of 
$2,174.00 pay per month for two months (forfeiture in excess of 
$1,000.00 pay per month for two months, was suspended); and a 
reprimand.

He appealed his NJP and his commander granted his appeal in 
part, by: (1) dismissing the charge of willful dereliction of 
duty; (2) set aside the forfeiture of pay; and (3) deleted the 
sentence “Willfully filing claims for taxi expenses you did not 
incur has caused your superiors to question the trust placed in 
you.”

His Area Defense Counsel (ADC) submitted a request to terminate 
his promotion delay and his request was granted, and the 
applicant was promoted to the grade of captain with an effective 
date of 26 Jan 11. 

According to the Joint Federal Travel Regulations (JFTR) anyone 
in a similar position and upon similar evidence, would have 
reasonably believed that taxi transportation such as the taxi 
transportation he took during official military travel/missions, 
were legitimate expenses and reimbursable.  Therefore, there 
would be no duty to refrain from claiming reimbursements for 
these expenses.

The original allegation of willful dereliction of duty from o/a 
13 Jan 10 and o/a 10 Oct 10 is inclusive within the allegation 
of negligent dereliction of duty from o/a 6 Feb 09 and o/a 
10 Oct 10; therefore, these offenses were unreasonable and a 
multiplication of charges against him.  

Before and during the time of his Temporary Duty (TDY) 
assignments, there were no definitive guidelines provided 
regarding the use of taxis for ground transportation.  It was 
not until approximately 9 months after his NJP that specific 
guidance was developed and distributed regarding filing travel 
claims for “unauthorized taxi reimbursement.”

Clearly, had he been provided this guidance before executing 
assignment orders, it is highly unlikely he would have faced 
dereliction of duty allegations and subsequent disciplinary and 
administrative adverse action.

His extraordinary performance and service to the Nation and 
United States Air Force cannot be overlooked.  He clearly 
understands the need for the scrutiny of any issue that would 
question a military member’s conduct; however, his service far 
outweighs any negative aspect presented.  His life and career 
encompassed more than just the allegations, and do not reflect 
who he is as a person and officer.

In support of his request, the applicant provides a 12-page 
counsel’s brief, his sworn testimony, witness statements, 
documents pertaining to his NJP, character statements, documents 
extracted from to his military personal records, and various 
other documents associated with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 16 Dec 10, while serving in the grade of first lieutenant, 
the applicant was offered NJP under Article 15 of the UCMJ for 
alleged violations of Article 92.  The applicant was charged 
with one specification for being derelict in his duties for 
willfully failing to refrain from claiming a reimbursement for 
taxis from 13 Jan 10 until 10 Oct 10, and one specification for 
being derelict in his duties by negligently failing to refrain 
from claiming taxi expenses from 6 Feb 09 until 10 Oct 10.  

A Commander Directed Investigation (CDI) resulted from evidence 
of the applicant claiming numerous taxi rides for personal 
convenience while TDY.  This investigation revealed the 
applicant claimed unauthorized taxi expenses on multiple travel 
vouchers beginning in Feb 09 and lasting until 10 Oct 10.  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 did not elect to make a personal appearance before his 
commander.  In his response, the applicant stated he was not 
willfully or negligently derelict in his duties by claiming 
these taxi expenses as he was never told he needed to refrain 
from claiming these expenses and when he asked others, he was 
told that he could claim these expenses.  Additionally, when he 
filed his travel vouchers, all of these expenses were approved.  
All of these expenses were mission related and there is no 
evidence that proves he or any other reasonable person would 
believe they could not claim these taxi expenses.  

On 5 Jan 11, the 18th Air Force Commander (18AF/CC) decided that 
the applicant had committed the offenses and imposed punishment 
consisting of a forfeiture of $2,174.00 pay per month for two 
months, with forfeitures in excess of $1,000.00 pay per month 
for two months suspended, and a reprimand.  The applicant 
appealed the decision to the 18AF/CC and submitted matters in 
writing.  On 4 Feb 11, his appeal was denied.  On 5 Mar 11, Air 
Mobility Command Vice Commander (AMC/CV) granted the applicant’s 
appeal in part, by lining out the willfully dereliction of duty 
specification, changed the forfeiture to $1,000.00, and lined 
out a portion in the reprimand related to the willful filing of 
the claim for the taxi expenses.  The Article 15 action was 
reviewed at two separate legal levels and was determined to be 
legally sufficient.

A resume of the applicant’s Officer Performance Reports follows:

	  Closeout Date			Overall Rating

	   6 Jun 09			Meets Standards
	   6 Jun 10			Meets Standards
	*  6 Jun 11			Does Not Meet Standards
	  27 Dec 12			Meets Standards

* Contested referral OPR.  The applicant was marked as not 
meeting standards in Section IX, Item 5, “Judgment and 
Decisions.”  Comments regarding his Article 15 were made in 
Section V.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to 
remove the Article 15 from his records.  The applicant has not 
shown a clear error or injustice.

A commander considering a case for disposition under Article 
15 exercises largely unfettered discretion in evaluating the 
case, both as to whether punishment is warranted and, if so, the 
nature and extent of punishment.  The exercise of that 
discretion should generally not be reversed or otherwise changed 
on appeal or by the Board absent good cause.  A set aside of 
punishment should not routinely be granted.  Rather, set aside 
is to be used strictly in the rare and unusual case where a 
genuine question about the service member’s guilt arises or 
where the best interests of the Air Force would be served.

The applicant alleges injustice in that he was not negligent in 
the dereliction of his duty to refrain from claiming taxi 
expenses.  It was his understanding, as well as others in his 
squadron, that these types of expenses were reimbursable.  These 
claims were always paid after being reviewed, which furthered 
his belief that it was allowable and authorized to claim these 
expenses.  There were no guidelines in his squadron on taxi 
expenses and the applicant was never told or trained that these 
expenses were not authorized.  All of this information was 
provided to the applicant’s commander and appellate authority at 
the time of the NJP.  

During the processing of his NJP, the appellate authority agreed 
partially with the applicant and found he did not willfully fail 
to refrain from claiming these expenses, but did still agree 
that he negligently failed to refrain from claiming the 
expenses.  The commander and appellate authority looked at all 
the evidence, to include submissions from the applicant, and 
found he was guilty.

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

The complete JAJM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to 
remove the adverse comment in Section V, and the marking that 
“Does Not Meet Standards” from his OPR closing 6 Jun 11.  DPSID 
states based on the lack of corroborating evidence provided by 
the applicant, and the presumed sufficiency pertaining to the 
issuance of the Article 15, they recommend the report not be 
modified or removed from his record.  

The applicant did not file an appeal through the Evaluation 
Reports Appeals Board (ERAB) under the provisions of AFI 36-
2401, Correcting Officer and Enlisted Evaluation Reports.

In accordance with (IAW) AFI 36-2406, Officer and Enlisted 
Evaluation Systems, Paragraph 1.3.1., evaluators are strongly 
encouraged to comment in performance reports on misconduct that 
reflects a disregard of the law, whether civil law or the UCMJ, 
or when adverse actions such as Article 15’s, Letters of 
Reprimand, Admonishment, Counseling, or placement on the Control 
Roster have been taken.  

The rating chain appropriately chose to comment and document on 
the underlying misconduct, which caused the report to be 
referred to the applicant for comments and consideration to the 
next evaluator.  The applicant provided no evidence within his 
case to show that the referral comment on the OPR was in anyway 
inaccurate or unjust.  DPSID contends that the inclusion of the 
comment on the referral OPR was appropriate and within the 
evaluator’s authority to document given the incident.  

The applicant provided witness statements supporting his claim 
of lack of training and knowledge of the Defense Travel System 
(DTS) travel vouchers; however, after a CDI, the applicant was 
ultimately found to be in violation of Article 92 of the UCMJ.  
Therefore, the comments referencing the behavior and the 
punishment received on the contested referral report is fair, 
accurate and IAW with AFI 36-2406 instructional guidance.

Concerning the applicant’s request to have the contested report 
modified, he has made a prohibited request by failing to provide 
a re-accomplished OPR, along with signed memorandums of 
support/justification from the original evaluators at the time.  
The governing directive states that appeals requesting to re-
accomplish an evaluation will not be considered without the 
applicant furnishing a new evaluation.  The ERAB will not 
consider nor approve requests to change an evaluator’s rating or 
comments if the evaluator does not support the change and the 
Board should assert the same requirement as to not circumvent 
the evaluators which bear the responsibility of making a fair 
and equitable assessment at the time the report was written.

An evaluation report is accurate as written when it becomes a 
matter or record.  It is considered to represent the rating 
chain’s best judgment at the time it is rendered.  Once a report 
is accepted for file, only strong evidence to the contrary 
warrants correction or removal from an individual’s record.  The 
burden of proof is on the applicant and he has not substantiated 
that the contested report was not rendered accurately and in 
good faith by all evaluators based on knowledge available at the 
time.

The complete DPSID evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant affirms his request for a full, fair and impartial 
review of his case.  His position remains without change, and 
respectfully requests that the relief sought, be granted.

The applicant believes that his leadership recommended that he 
be found guilty to the 18 AF/CC who, without a second thought, 
found him guilty on both counts.  He feels they failed to look 
at the actual facts of the case, even after an appeal, which was 
immediately denied.  It was not until the AMC/CC looked at the 
documents provided that a sensible ruling was made to overturn 
the most serious charge.

Prior to the NJP of 5 Jan 11, his record was not only spotless, 
it was exemplary.  His personal and professional conduct has 
been beyond reproach.  His immediate supervisors have all 
personally vouched for him to include a “non-concur” on his 
referral OPR.

There was no specific guidance on taxi charges, so there was no 
duty to refrain from claiming reasonable expenses.  Given the 
circumstances, he was filing travel vouchers to the best of his 
abilities, for reasonable taxi expenses for food when no 
suitable food was available within walking distance.  Two years 
of travel vouchers were reviewed and approved with full 
disclosure.  His leadership developed guidance that would make 
his prior taxi expenses a violation, thereby charging him 
retroactively for conduct prior to their new rules.

The applicant's complete response, with attachment, is at 
Exhibit F.

________________________________________________________________

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 note that 
the applicant’s counsel argues that based on the lack of 
training and understanding of the policies governing travel 
expenses in his unit the NJP should be set aside. However, in 
our view, the Air Force office of primary responsibility and the 
Air Force Legal Operations Agency have adequately addressed the 
issues presented by the applicant and we are in agreement with 
their opinion and recommendation.  We find no evidence of an 
error or injustice that occurred during the NJP proceedings; nor 
has the applicant provided any evidence which would lead us to 
believe the NJP was contrary to the provisions of the governing 
instructions, unduly harsh, or disproportionate to the offenses 
committed.  Since we find no reason to remove the NJP, no basis 
exists to remove the comments from the contested OPR or to 
restore pay, allowances entitlements, rights and privileges 
affected by the NJP.  Therefore, in view of the above, we find 
no basis to recommend granting the requested relief.  

________________________________________________________________

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-2013-01226 in Executive Session on 20 Feb 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Feb 13, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 11 Apr 13.
    Exhibit D.  Letter, AFPC/DPSID, dated 21 Jun 13.
    Exhibit E.  Letter, SAF/MRBR, dated 5 Aug 13.
    Exhibit F.  Letter, Applicant’s Counsel, 
                dated 3 Sep 13, w/atchs




                                   Panel Chair