RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00538
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

The Record of Nonjudicial Punishment (NJP), imposed on 5 Dec 
2012, pursuant to Article 15, Uniform Code of Military Justice 
(UCMJ), be mitigated to a forfeiture of pay and/or a suspended 
reduction to the rank of staff sergeant (SSgt, E-5).

________________________________________________________________

APPLICANT CONTENDS THAT:

On 5 Jan 2011, $2,068.47 was unaccounted for while she was 
deployed as a Disbursing Agent (DA).  On 14 Jan 2013, someone 
gained access to the safe and stole $56,993.67.  On 27 Nov 
2012 she was notified by her commander that he was considering 
punishment under the UCMJ for violating the Article 92, 
negligence and failure to maintain accountability of fund cites 
and for failing to change a safe combination that contained the 
funds, as a DA while deployed.  After reviewing the evidence, 
the commander found she was not guilty of failing to change the 
safe combination, but found her guilty of failing to maintain 
accountability of the fund cites.  He imposed a punishment of 
reduction to the rank of SSgt, with an effective date of rank of 
5 Dec 2012.  The DA she replaced failed to turn over $6,210.00; 
however, she has received no disciplinary action for failing to 
maintain accountability of fund cites.  Due to the extenuating 
circumstances surrounding this case and the fact that the 
commander removed the specification of failing to change the 
safe combination upon transfer of accountability, in violation 
of Article 92, UCMJ, she feels that the punishment was too 
harsh, grossly unfair and disproportionate to the offense.  Her 
failure to maintain accountability of the fund cites resulted in 
$2,068.47 as reflected on DD Form 1081, Statement of Agent 
Officer's Account.  She takes accountability for his amount; 
therefore she is not asking for the punishment to be set aside, 
but that it be mitigated to forfeiture of pay and/or suspension 
of rank reduction.  Holding her accountable for the criminal 
acts of someone else is unjust, especially since the CDI 
indicated that that money was stolen by a “non-US official who 
had access to the house.”  Moreover, the commander removed the 
specification of failing to change the safe combination upon 
transfer of accountability.  Therefore she should not be held 
accountable for the stolen amount.  She asks the Board to 
consider reducing the severity of the punishment to a forfeiture 
of pay for the amount she was not able to account for 
($2,068.47.  Due to the reduction in rank, high year of tenure 
rules will require her to separate from active duty early.

In support of her request, the applicant provides a personal 
statement, copies of her Article 15, Command Directed 
Investigation (CDI) report, Summary of Duty History, and various 
other documents associated with her request.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the rank of SSgt.

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force at Exhibit C.  Accordingly, there is no need to 
recite these facts in this Record of Proceedings.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states that the applicant 
has not exhausted all other available remedies for relief nor 
has she shown a clear error or injustice.  On 27 Nov 2012, the 
applicant was offered nonjudicial punishment under Article 15, 
UCMJ.  She was charged with two specifications of dereliction of 
duty while deployed, for failing to maintain accountability of 
certain fund-cites and failing to change the combination of the 
safe upon transfer of accountability, in violation of Article 
92, UCMJ.  She was afforded the opportunity to consult with 
defense counsel, accepted the Article 15, and waived her right 
to demand trial by court-martial.  She elected to present 
written matters and declined to make a personal appearance 
before the commander. On 5 Dec 2012, the commander decided that 
the applicant had committed only the offense for the failure to 
maintain accountability of certain fund-cites and withdrew the 
specification for the failure to change the combination of the 
safe upon transfer of accountability.  The commander imposed 
punishment consisting of reduction to the rank of staff 
sergeant.  The applicant appealed the commander's decision.  On 
11 Dec 2012, the appellate authority denied the applicant's 
appeal.  The Article 15 action was reviewed and determined to be 
legally sufficient.  Members who wish to contest their 
commander's determination or the severity of the punishment 
imposed may appeal to the next higher commander.  The appeal 
authority may deny the appeal altogether if the appeal authority 
agrees with the action taken or may remove or modify the Article 
15 if he or she disagrees in whole or in part with the action.

The Manual for Courts-Martial and AFI 51-202 provide for certain 
relief from nonjudicial punishment, specifically, mitigation, 
remission, suspension, and set aside.  Mitigation is a reduction 
in either the quantity or quality of a punishment.  Mitigation 
is appropriate when the offender's later good conduct merits a 
reduction in the punishment, or when it is determined that the 
punishment imposed was disproportionate. The nonjudicial 
punishment authority who imposes nonjudicial punishment, the 
commander who imposes nonjudicial punishment, or a successor in 
command, may mitigate a reduction in grade to forfeiture in pay.  
Reduction in grade may be mitigated to forfeiture of pay only 
within 4 months after the date of the execution, which in this 
case, would have been 4 Apr 2013.

The applicant alleges that the charge against her was unjust and 
disproportionate to the offense committed.  She does not allege 
error, however, in how the Article 15 was processed.  A review 
of the available documentation indicates that her rights were 
observed throughout the process.  On 10 Dec 2012, she made a 
personal appearance before her commander and appealed the 
action.  The commander at the time of this nonjudicial 
punishment action had the best opportunity to evaluate all the 
evidence in this case.  With that perspective, the commander 
exercised the discretion that the applicant granted him when the 
applicant accepted the Article 15.  The legal review processes 
showed that the commander did not act arbitrarily or 
capriciously in making his decision.  A review of the AF Form 
3070, Record of Nonjudicial Punishment Proceedings, indicates 
that the applicant's rights were observed throughout the process 
of the nonjudicial punishment action.  Moreover, the applicant 
has not exhausted the available remedies under the rules for the 
mitigation of punishment under the MCM and the UCMJ. The 
applicant does not make a compelling argument that the Board 
should overturn the commanders' original, nonjudicial 
punishments decision on the basis of injustice.  The commanders' 
ultimate decisions on the Article 15 actions are firmly based on 
the evidence of the case and the punishment decision was well 
with the limits of the commander's authority and discretion, and 
the applicant may still seek to mitigate the punishment imposed 
through her existing chain of command.

The complete JAJM evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

While the nonjudicial punishment proceedings were legally 
sufficient, the evidence submitted shows instances of gross 
unfairness.  The punishment was severe for the offense of failure 
to maintain accountability of the fund cites that amounted to 
$2,086.47.  This was a first time offense and the CDI shows the 
proximate fault of others.  In light of the foregoing and because 
of how long ago the offense occurred, a suspension of a reduction 
in rank and/or a forfeiture of pay would have been rehabilitative 
rather than demoralizing, humiliating and financially 
devastating.  The Article 15 itself is severe.  She willingly 
accepted it because she admits to her part of any wrongdoing and 
for not asking for help when she had trouble balancing her 
spreadsheets; and has taken accountability for that.  AFLOA/JAJM 
states that she has not exhausted all remedies.  However, when 
she submitted her application, she was under the impression that 
her appeal to the appellate authority was the final means of 
appeal, hence why she even stated in her initial statement to the 
AFBCMR that she had exhausted all means of appeals with them, 
with her last hope being to appeal to an unbiased and impartial 
party.  She received the advisory opinion on 15 Mar 2013.  
AFLOA/JAJM stated that she could have still appealed within the 
4 months of receiving the punishment with her chain of command.  
Upon learning this, she thought she would appeal her punishment 
again with her chain of command the following week.  However, she 
had been trying to overcome the Article 15 and subsequent 
punishment and to keep a positive attitude.  The distress she had 
endured as a result of this punishment adversely impacted her 
physical performance and on 28 Feb 2013, she failed her Fitness 
Assessment.  On 18 Mar 2013, she received a Letter of Reprimand 
(LOR) for the failure.   She believed the LOR rendered her 
ineligible to appeal to her chain of command as the attempt would 
have been futile.  She unequivocally accepts accountability for 
her wrong doing and is not pointing fingers or attempting to 
deflect total blame onto others. The punishment she received 
would have been warranted had the unaccounted amount resulting 
from her failing to account for the fund cites amounted to 
$32,636.07.  However, the unaccounted amount she was responsible 
for was $2,086.47.  She asks the Board to consider changing the 
punishment to a forfeiture of pay or to mitigation.  While this 
action would cause a loss of 2 years and 3 months time in grade, 
it would allow her to retire in the rank of Technical Sergeant 
(TSgt, E-6).  In the remaining 5 years until retirement, the 
money she will have lost as a SSgt equates to roughly $36,000, 
which exceeds the $32,636.07 she was held accountable for.  The 
Article 15 she received in not unjust; however, the punishment is 
harsh. 

________________________________________________________________

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 injustice.  We took 
notice of the applicant's complete submission, to include her 
rebuttal response, in judging the merits of the case; however, 
we agree with the opinion and the recommendation of the Air 
Force office of primary responsibility and adopt its rationale 
as the basis for our conclusion the applicant has failed to 
sustain her burden of proof of the existence of an error or 
injustice.  Although, the applicant believes the punishment she 
received as a result of the Article 15 was too harsh, grossly 
unfair and disproportionate to the offense, she had the option 
of appealing her punishment to the commander.  However, she made 
a conscience decision not to.  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 issue(s) 
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 this application in 
Executive Session on 7 Nov 2013, under the provisions of AFI 36-
2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered in AFBCMR BC-
2013-00538:

    Exhibit A.  DD Form 149, dated 25 Jan 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 1 Mar 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Mar 2013.
    Exhibit E.  Letters, Applicant, dated 16 Mar 2013, w/atchs 
                and 7 Apr 2013, w/atchs.




                                   
                                   Panel Chair