RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-00735
		INDEX CODES:  111.02, 131.00

		COUNSEL:  

		HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered for the period 21 Aug 94 through 25 Jul 95 be declared void and removed from his records.

His records be corrected to reflect that he was promoted to the grade of master sergeant effective and with date of rank (DOR) of 1 Aug 95, rather than 1 Aug 97, with back pay and allowances.

APPLICANT CONTENDS THAT:

The contested report was based on a factually and procedurally irregular letter of reprimand (LOR).  The report should have been a referral EPR, thus allowing him an opportunity to formally rebut the contents of the report.

He was removed from the promotion list based on identical allegations in the LOR and the derogatory EPR.

In support of his appeal, the applicant provided a counsel’s brief, a copy of his appeal under the provisions of AFI 36-2401, which included copies of the contested EPR, LOR, nonrecommendation for promotion letter, and numerous other documents associated with the matter under review.

Applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) indicates that the applicant retired for length of service, effective 1 Aug 99, in the grade of master sergeant.  He was credited with 20 years, 4 months, and 12 days of active duty service.

Applicant's Airman Performance Report/Enlisted Performance Report (APR/EPR) profile since 1988 follows:

     PERIOD ENDING                            EVALUATION 

	30 Aug 88	9
	15 Mar 89	9
	16 Mar 90	4 (EPR)
	16 Mar 91	5
	16 Mar 92	5
	16 Mar 93	5
	16 Mar 94	5
	20 Aug 94	5
  *  25 Jul 95	2
	25 Jul 96	5
	31 Mar 97	5
	31 Mar 98	5

* Contested report.

On 26 Jul 95, the applicant was given an LOR for the following reasons:

	a.  On 11 Jul 95, a production evaluation was conducted to review his recruiting activities for failure to make goal for two consecutive quarters.  During the production evaluation it became evident that between 2 Jan 95 and 31 May 95, he reported false numbers of 342 USAFRSQ Forms 6 (planning guide) regarding phone prospecting.  This was found during a routine validation of long-distance phone calls.  Reported long-distance telephone calls were not validated when checked against the long-distance telephone bills.

	b.  On 6 Jun 95, he was given a specific order by the Operations Officer to disconnect a specific telephone (designated for data transmission) and to not use that line for telephone calls.  Phone records indicated that on 9 Jun 95, he made a phone call to another recruiter’s home phone.  The phone was also still in place during the 11 Jun 95 production evaluation.

On 26 Jul 95, the applicant received notification from his commander that he was not being recommended for promotion to the grade of master sergeant for cycle 95E7.  The specific reasons were:

	a.  His duty performance had been less than acceptable, causing a production evaluation to be required on 11 Jul 95, which found serious breaches of integrity and inaccurate reporting of activity.

	b.  His attitude and failure to follow direct orders from a superior officer and immediate direction from supervisors additionally showed a lacking of character, respect, and understanding of military protocol and procedures critical for mission accomplishment and expected of all, especially senior noncommissioned officers (NCOs).

AIR FORCE EVALUATION:

The Enlisted Promotion and Military Testing Branch, AFPC/DPPPWB, reviewed this application and indicated that should the EPR be removed or the DOR changed to 1 Aug 95, the applicant would be entitled to supplemental promotion consideration to the grade of senior master sergeant beginning with cycle 98E8, provided he is recommended and is otherwise qualified.  DPPPWB noted that the applicant became a selectee to master sergeant during the 97E7 cycle with a date of rank and effective date of 1 Aug 97.

A complete copy of the DPPPWB evaluation is at Exhibit C.

The Staff Judge Advocate, AFPC/JA, reviewed this application and recommended denial.  A complete copy of the evaluation is at Exhibit D.

The BCMR Appeals and SSB Section, AFPC/DPPPAB, reviewed this application and recommended denial.  A complete copy of the evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on 3 Sep 99 for review and response.  As of this date, no response has been received by this office (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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After a thorough review of the available evidence, we have serious reservations concerning the LOR received by the applicant, which appears to have been the basis for the contested report and his  nonrecommendation for promotion.  

	a.  The evidence of record reveals that the applicant was given an LOR for falsifying his recruiting telephone log and disobeying an order to disconnect and not to use a specific telephone (designated for data transmission) and to not use that line for telephone calls.  Upon closer scrutiny of this case, we are not convinced of the applicant’s culpability regarding his alleged falsifying of the telephone log.  In this respect, we note that his commander initially pursued nonjudicial punishment under Article 15 against him for making false official statements in the phone log.  When the applicant’s military counsel requested a copy of the evidence that was the basis for the Article 15 from the legal office, she was told that the office did not have it.  Ultimately, the Article 15 action was dropped and the commander sought administrative action against the applicant.  

	b.  It appears the basis for the allegation that the applicant falsified official documents was the discrepancy between his phone log and the telephone bill, in that certain long distance telephone calls were not itemized.  When the applicant was unable to immediately provide a plausible explanation, his integrity was called into question.  The evidence seems to suggest that the applicant experienced a number of problems with his phone system.  His military counsel indicated that the applicant attempted to research the phone records and contacted the phone companies in order to clear up the problem but this took time.  However, he eventually discovered that there were telephone calls that were not itemized on the bill because they were grouped together in a bulk billing.  According to counsel, attempts have been made to receive itemized bills but to no avail.  In her view, the applicant’s unit could not do an accurate and fair analysis of the matters without getting the itemized phone bills.  We tend to agree.

	c.  With regard to the allegation that the applicant failed to obey an order to disconnect and not use a specific phone line, it would seem that the applicant failed to disconnect the line since a call was made from that line.  However, there is no evidence that the applicant used or intended for the line to be used.  A statement has been provided by another recruiter indicating that he made the call without the applicant’s knowledge.  We believe that receiving an LOR and being denied promotion for what may have been an inadvertent act on the part of the applicant seems unduly harsh.

4.  In view of the foregoing and in an effort to offset any possibility of an injustice, we believe the contested report, the LOR, and the nonrecommendation for promotion should be declared void and removed from his records and he be provided supplemental promotion consideration.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  The Enlisted Performance Report, AF Form 910, rendered for the period 21 Aug 94 through 25 Jul 95, be declared void and removed from his records.

	b.  The Letter of Reprimand, dated 26 Jul 95 and the Notification of Nonrecommendation for Promotion Letter, dated 26 Jul 95, and any and all documents and references pertaining thereto, be declared void and removed from his records.

	c.  He was promoted to the grade of master sergeant (E-7) effective and with date of rank of 1 Aug 95, rather than 1 Aug 97.

It is further recommended that he be provided supplemental consideration for promotion to the grade of senior master sergeant for all appropriate cycles beginning with cycle 98E8.

If selected for promotion to the grade of senior master sergeant by supplemental consideration, he be provided any additional supplemental consideration required as a result of that selection.

If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual's qualifications for the promotion. 

If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.

The following members of the Board considered this application in Executive Session on 21 Mar 00, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Jul 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dated 24 May 99.
     Exhibit D.  Letter, AFPC/JA, dated 9 Aug 99.
     Exhibit E.  Letter, AFPC/DPPPAB, dated 16 Aug 99.
     Exhibit F.  Letter, SAF/MIBR, dated 3 Sep 99.