RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00307
 					COUNSEL:   
					HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

1.  His summary court-martial conviction be expunged from his 
record.  

2.  His general discharge be upgraded to honorable and his 
narrative reason for separation be changed.

3.  His referral Enlisted Performance Report (EPR) for the period 
ending 17 Jun 09 be declared void and removed from his record.  

4.  His Unfavorable Information File (UIF) be removed from his 
record.


APPLICANT CONTENDS THAT:

He was sent on a Temporary Duty (TDY) assignment in support of the 
NATO Baltic Air Mission in Lithuania.  Although he was a 
relatively new Air Force Office of Special Investigations (AFOSI) 
agent, he was left by himself.

He was scapegoated by the failure of senior leadership to provide 
extra help.  He was forced by AFOSI superiors to work beyond all 
reasonable standards until he was exhausted.  He was greatly 
fatigued from working numerous 18-20 hour days and was denied 
requests for logistical and personnel support.  

On 7 Dec 08, he had 3-4 hours of sleep and began to drive from 
outlying Siauliai to Vilnius.  He contacted his supervisor by cell 
phone and requested additional personnel to assist him.  To stay 
alert, he had a bottle of cola and cappuccino.  He wore his 
seatbelt and drove within the legal speed limit.  He was not using 
his cell phone and was paying full attention to his driving.  He 
has no recollection of feeling drowsy.  Tragically, he fell 
asleep.  His car crashed into a slow moving funeral procession and 
a Lithuanian national was killed.

He was tried by summary court-martial for violation of Article 
134, Uniform Code of Military Justice (UCMJ), negligent homicide.  
Upon negotiated pleas of guilty, he was found guilty and sentenced 
to reduction to the grade of Senior Airman (SrA, E-4) and 
forfeiture of $1,146.

One Article 32 investigating officer recommended an Article 15, 
not court-martial as AFI 36-2910, Line of Duty (Misconduct) 
Determination, specifically addresses motor vehicle accidents and 
that it is not necessarily misconduct that a member has an auto 
accident due to falling asleep while driving. 

A safety investigation was not completed.  There is no evidence he 
was driving inattentively or talking on his cell phone.  

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


STATEMENT OF FACTS:

On 22 Jul 98, the applicant entered the Regular Air Force.  

He received a referral EPR for the period ending 17 Jun 09.  The 
specific reasons for the referral EPR were that he failed to 
notify his chain of command of a co-worker’s suicidal ideations, 
resulting in a Letter of Admonishment (LOA) and UIF.  He also 
disobeyed a no-contact order and charged $800.00 on a government 
cell phone while deployed resulting in a Letter of Reprimand 
(LOR).   

On 6 Dec 10, the applicant was found guilty of negligent homicide, 
in violation of Article 134, UCMJ by a summary court-martial.  He 
was reduced to the grade of SrA and required to forfeit $1,146 of 
his pay for one month.  

On 30 Dec 10, the convening authority approved the adjudged 
sentence.

On 17 Feb 11, he was discharged with service characterized as 
general (under honorable conditions) with a narrative reason for 
separation of “Misconduct (Serious Offense).”  He was credited 
with 12 years, 6 months and 26 days of active duty service.

The applicant’s post-service activities include pursuing higher 
education while working part-time as a loss prevention officer.  
In 2013, he received a bachelor’s degree, with honors, from 
American Military University.  He is currently seeking full-time 
employment and continues to serve his community by volunteering 
with the local American Red Cross Community Emergency Response 
Team, a nation-wide veteran service organization and Team Rubicon.

In a letter dated 27 Jan 14, SAF/MRBR advised the applicant that 
the part of his application for correction of military records (DD 
Form 149) requesting a review to upgrade his discharge cannot be 
processed on a DD 149.  The letter also stated that the Air Force 
Boards for Correction of Military Records requires applicants to 
first exhaust all other administrative remedies afforded by 
existing laws or regulation and this application did not reflect 
his request was previously processed under the provisions of 
Section 1553, Title 10, United States Code, and reviewed by the 
Air Force Discharge Review Board (AFDRB).  The applicant was also 
advised to request the AFDRB review his discharge by completing 
and submitting a DD Form 293, Application for the Review of 
Discharge or Dismissal from the Armed Forces of the United States.  

In a letter dated 10 Feb 14, counsel responded to the SAF/MRBR’s 
letter and declined application to the Discharge Review Board 
(DRB) for upgrade of the discharge and requested the Board 
adjudicate the entire application (Exhibit D).


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to 
overturn the court-martial conviction.  Based on their review, 
JAJM sees no error or injustice with the court-martial process 
that would warrant granting the applicant relief.  If he did not 
feel he was guilty of the charged misconduct, he had the right to 
object to trial by summary court-martial.  He also had the right 
to plead not guilty.  However, he chose not to object to the 
summary court-martial forum.  He also freely pled guilty to the 
negligent homicide charge and then went on to explain to the 
summary court-officer under oath the basis for his guilty plea.

The applicant was driving near Ukmerge, Lithuania on official duty 
en route to meet U.S. embassy personnel when he struck another 
vehicle killing the passenger. Subsequently, charges were 
preferred against the applicant for reckless driving in violation 
of Article 111, UCMJ, involuntary manslaughter, in violation of 
Article 119, UCMJ, and negligent homicide, in violation of Article 
134, UCMJ.  An Article 32 investigation was conducted 19 thru 
22 Jan 10 and the investigating officer recommended that the 
matter be disposed of with non-judicial punishment. 

On 4 Oct 10, a second Article 32 pretrial investigation was 
conducted.  This time, it was recommended that the matter be 
handled by a summary court-martial.  

On 15 Nov 10, the convening authority referred the charges to a 
summary court-martial.

On 6 Dec 10, the summary court-martial was conducted.  IAW his 
plea, he was found guilty of negligent homicide, in violation of 
Article 134, UCMJ.  The government did not proceed with the 
reckless driving and involuntary manslaughter charges.  He was 
reduced to the grade of SrA and required to forfeit $1,146 pay for 
one month.  On 30 Dec 10, the convening authority approved the 
adjudged sentence 

The complete JAJM evaluation is at Exhibit E. 

AFPC/DPSIM recommends denial of the applicant’s request to remove 
the UIF.  DPSIM cannot speak as to whether the commander’s action 
was just or not; however, they concluded proper procedures were 
followed.  IAW AFI 36-2907, Unfavorable Information File (UIF) 
Program, paragraph 1.2.2.1 commanders at all levels for enlisted 
members assigned or attached to their units have the authority to 
establish, remove or destroy UIFs.  

The complete DPSIM evaluation is at Exhibit F.  

AFPC/DPSID recommends denial of the applicant’s request to remove 
the referral EPR.  DPSID states the applicant has not provided any 
compelling evidence to show that the report was unjust or 
inaccurate as written.  

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.  He has waited 
5 years to file this appeal and offered no justification for the 
delay and took no action on the claim before that.  

The contested EPR makes no mention of an accident, court-martial 
or UIF as the incident was still under investigation.  The report 
is a referral, yet references two other situations none which the 
applicant provided any evidence to contest.  Air Force policy 
states, evaluators are obliged to consider such incidents, their 
significance and the frequency with which they occurred in 
assessing performance and potential.  He provided no evidence 
within his case to show that the EPR was inaccurate or unjust.  
Air Force policy is that an evaluation report is accurate as 
written when it becomes a matter of record and is considered to 
represent the rating chain’s best judgment at the time it is 
rendered.

The complete DPSID evaluation is at Exhibit G.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 Nov 14, the applicant’s counsel submitted a 51-page document 
stating that the advisories miss the crucial issue that the auto 
accident happened as a direct result of him being obliged to work 
beyond normal human competency with a little over 3 hours of sleep 
each night.  Nowhere do the advisories challenge this fact or 
explain why his superiors placed such a burden on him.  They 
isolated him without even temporary help while real-time terrorist 
threats endangered American personnel.  The threats escalated and 
called for 2 to 3 agents but he did not receive help even though 
he, a new agent, asked for help at least 8 times.   

The EPR includes relevant bullets and confirms the increased tempo 
while deployed in support of Baltic Air Policing Operations.  
There are specific bullets referring to the applicant’s work with 
the host nation to neutralize threats and monitor suspected 
terrorist activities.

The applicant is a proficient driver.  He was the executive driver 
for the USAFE Commanding General prior to joining the AFOSI and he 
has completed numerous driving training courses.  At the time of 
the accident, he was not using his cell phone or speeding as 
corroborated by a lie detector test.

Air Force safety regulations include specific requirements.  His 
superiors compromised him and the mission by refusing relief and 
exhausting him.  AFI 91-207, The US Air Force Traffic Safety 
Program, addresses safety and extended hours.  AFP 91-216, USAF 
Safety Deployment and Contingency Pamphlet, paragraph 14.1, states 
fatigue can cause mishaps.  After 48 to 72 hours without sleep, 
personnel become ineffective.  An advisory opinion from safety 
officials on how pertinent Air Force safety standards were spurned 
is recommended should the Board have any remaining questions.

The advisories cite statute of limitations but this is not an 
ancient case and the summary court-martial happened in late 2010.  
There has been no unwarranted delay.  Undue delay is more in the 
range of 15 years, the timeframe Congress set for applications to 
the DRB.  The advisories suggest that the passage of time means 
that documentation does not exist.  Under the Freedom of 
Information Act (FOIA), the applicant obtained sanitized documents 
confirming his onerous extra duties.  The FOIA staffers reference 
numerous documents from the time of the applicant’s TDY claiming 
various privileges to withhold data.  If no pertinent documents 
exist, the FOIA people would have said so.  

The applicant accepted a summary court-martial on the advice of 
defense counsel after 23 months, two Article 32 investigations and 
the threat of general court-martial.  He was disadvantaged by the 
lack of a normal safety investigation mandated under AFI 191-
202 [sic].  Furthermore, his commanders declined to accept the 
recommendation of the original Article 32 investigation officer, a 
colonel (O-6), who recommended an Article 15 instead of court-
martial and prosecution refused to recognize that falling asleep 
is not an indication of negligence under the LOD standards.  The 
applicant pleaded not guilty to other matters, while conceding one 
charge of simple negligence.  His election does not bar him from 
seeking redress now.

It is highly unfair to deny him relief because of an earlier 
admonishment.  He was admonished for not informing higher 
headquarters of the possible mental volatility of another agent.  
This is irrelevant to this issue.  Whether the applicant was the 
agent of the year or the worst bumbler ever to serve the AFOSI, 
overload is overload and nothing can change this fact.  The harsh 
punishment has served its purpose given the good citizenship of 
the applicant.  Since leaving the service, the applicant serves in 
the Mountain West Voluntary Organization Active in Disaster (VOAD) 
and coordinates over 100 volunteers throughout 10 states during 
times of disaster.  He is an advisor to the Federal Emergency 
Management Agency (FEMA) for the Nuclear/Radiological Incident 
Annex and is a trained suicide counselor to prevent veteran 
suicides.  A complete post-service biography is provided.

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


THE BOARD CONCLUDES THAT:

1.  The applicant has not exhausted all remedies provided by 
existing law or regulations.  We note the applicant declined 
application to the Discharge Review Board (DRB) for upgrade of the 
discharge and requests the Board adjudicate the entire 
application.  However, this Board is the highest administrative 
level of appeal within the Air Force.  As such, an applicant must 
first exhaust all available avenues of administrative relief 
provided by existing law or regulations prior to seeking relief 
before this Board, as required by the governing Air Force 
Instruction.  After carefully reviewing this application we note 
there is an available avenue of possible administrative relief the 
applicant has not exhausted.  In view of this, we find that 
consideration of the applicant’s appeal to upgrade his discharge 
or change his narrative reason for separation by this Board is not 
appropriate at this time.  Therefore, the applicant should submit 
a DD Form 293 to the DRB for review.  If he is not successful in 
obtaining the relief he seeks through available administrative 
channels, he may then consider resubmitting his appeal to this 
Board. 

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We note the 
applicant requests his summary court-martial conviction be 
expunged from his record.  However, this Board is without 
authority to reverse, set aside, or otherwise expunge a court-
martial conviction.  Rather, in accordance with Title 10, United 
States Code, Section 1552(f), our actions are limited to 
corrections to the record to reflect actions taken by the 
reviewing officials and action on the sentence of the court-
martial for the purpose of clemency.  In view of the foregoing, we 
find no basis to act on this portion of his request.  

4.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice to warrant 
removing the contested EPR or UIF.  After carefully reviewing the 
evidence, we are not persuaded that the report is not a true and 
accurate assessment of his behavior and demonstrated potential 
during the specified time period or that the ratings he received 
were in error or contrary to the provisions of the governing 
instruction. We are also not persuaded that the UIF should be 
declared void and removed from his records. While counsel argues 
the accident happened because the applicant was greatly fatigued 
from working numerous 18-20 hour days without logistical and 
personnel support; we do not find these assertions, in and by 
themselves, sufficiently persuasive.  Therefore, we agree with the 
opinions and recommendations of the Air Force offices of primary 
responsibility and adopt the rationale expressed as the basis for 
their conclusion that the applicant has not been the victim of an 
error or injustice.  In the absence of evidence to the contrary, 
we find no basis to recommend granting the relief sought in this 
application.

5.  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 exhausting all 
subordinate avenues of administrative relief or the submission of 
newly discovered relevant evidence not considered with this 
application. 


The following members of the Board considered AFBCMR Docket Number 
BC-2014-00307 in Executive Session on 9 Dec 14 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-00307 was considered:

	Exhibit A.  DD Form 149, dated 10 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, SAF/MRBR, dated 27 Jan 14.
	Exhibit D.  Letter, Counsel, dated 10 Feb 14.
	Exhibit E.  Memorandum, AFLOA/JAJM, dated 28 Feb 14.
	Exhibit F.  Memorandum, AFPC/DPSIM, dated 7 Mar 14.
	Exhibit G.  Memorandum, AFPC/DPSID, dated 14 Oct 14.
	Exhibit H.  Letter, SAF/MRBR, dated 27 Oct 14. 
	Exhibit I.  Letter, Counsel, dated 22 Nov 14, w/atchs.