RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01959
		INDEX CODE:  111.02

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered for the period 8 March 2000 through 7 March 2001 be declared void or remove referral comments and upgraded to an overall “5” rating.

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APPLICANT CONTENDS THAT:

His squadron commander and squadron section commander made negative changes to his EPR based on information that should not have been considered or relied upon.  This was unlawful and unfair.

In support of the appeal, applicant submits a personal statement, a Reconsideration of EPR package from his Defense Counsel, and three character references.  Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of staff sergeant, having been promoted to that grade, effective 1 February 1997. He currently has a High Year of Tenure Date of 1 April 2009.  EPR profile since 1996 reflects the following:

	PERIOD ENDING	PROMOTION RECOMMENDATION

	  30 May 96		     5
	   7 Mar 97		     5
	   7 Mar 98		     5
	   7 Mar 99		     5
	   7 Mar 00		     5
	  *7 Mar 01		     3
	  19 Jan 02		     5
	  19 Jan 03		     5

*  Contested report.  Promotion Recommendation downgraded from
   “5” to “3” by the commander.

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AIR FORCE EVALUATION:

AFPC/DPPPWB states that should the AFBCMR grant his request, providing he is otherwise eligible, the applicant will be entitled to supplemental promotion consideration beginning with cycle 01E6.  It would serve no useful purpose to provide him with supplemental consideration for this cycle, as he could not be selected.  He missed selection for cycle 01E6 by 1.72 points.  It is uncertain whether he would become a select for cycle 02E6 as there are no test scores on file since he was ineligible for this cycle and never tested.  A complete copy of the evaluation is attached at Exhibit C.

Examiner’s Note:  AFPC/DPPPWB advised that the applicant was ineligible for promotion consideration during cycle 02E6 because of the contested referral report.  Removing the report would reinstate his promotion eligibility for this cycle.  The applicant was eligible and is currently undergoing consideration for promotion for cycle 03E6.  The results of this consideration have not yet been finalized.

AFPC/DPPPEP states that in reference to the applicant’s contentions that the EPR is unjust because his command section prematurely made a decision on his off-duty conduct and that an extension should have been requested to ensure the allegations were confirmed prior to submitting the report, they state that they are authorized to grant extensions for 59 days and the final decision on the applicant’s assault with a deadly weapon charge (the only action still pending) was not resolved until 12 June 2001.  In reference to the applicant contending that since a decision had not been reached on the assault charge, it should not have been considered when rendering an assessment, they state the section commander and squadron commander obtained information of the arrest from the actual police report.  In the absence of evidence to the contrary and the file contains none, they can assume the information was from a reliable source.

In reference to the applicant’s arrest for being drunk and disorderly on 23 June 2000 and his contention he did not start arguing and resisting arrest until the police threatened the other people in the house, they state, regardless of either account, the applicant clearly engaged in conduct that is inconsistent with Air Force standards.

In reference to the applicant being arrested a second time and his defending his behavior by stating it was self defense, and stating that he was later acquitted of the crime, therefore, the reference to the arrest is unjust, they state, even though the applicant was acquitted of one crime, the fact remains he again engaged in behavior inconsistent with Air Force standards and the evaluators were justified in using the information provided in the police report when assessing performance.  Even if this basis was found to be inappropriate, they believe the remaining evidence is sufficient to support the referral and rating that was given.

Applicant’s contention that Family Advocacy assumed he had argued with his wife in front of the children at home, but did not have evidence to substantiate the allegation and therefore, it is unjust, they state, the Family Advocacy Office is not bound by any rules of evidence because they do not impose punishment and as such, their finding of family abuse was opinionated.  Although the finding may be opinionated, the Family Advocacy counselors are trained professionals relied upon to give educated assessments and the applicant’s evaluators are obliged to consider them, as well, even if punishment is or is not imposed.

In summary, DPPPEP is of the opinion that the actions taken by the ERAB were lawful and fair.  The applicant did not provide any evidence to show the referral comments were erroneous or unjust.  While character references are commendable, they do not override the evaluators’ assessments of the ratee’s off duty conduct.  Therefore, they recommend denial of applicant’s request.

A complete copy of their evaluation, with attachments, is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and states that he still believes that the information used to make the decision to make changes to his EPR after it was a matter of permanent record was unfair and not in compliance of AFI 36-2406.

In reference to paragraph e of the evaluation, he does not wish to discredit the officer in any way.  He does wish to point out that police reports are written by people and are subject to human error, prejudice, and emotions.  He’s sure the police officer that responded to his house on a call of shots fired had plenty of adrenaline going when he encountered him at his home.  At the same time, he was caught totally off guard not knowing why the police were there, and not expecting to have weapons drawn on him.  He states, whether he (the officer) felt threatened by him is his opinion.  While they did get into an argument, and he accepted responsibility for his participation in it, he did not feel that the officer’s badge gave him the right to speak to him or anyone at his house any way he felt.  As to providing evidence to the contrary, he asks what is there to provide.  Once the report was written it was not questionable, only he was.  He states AFI 36-2406, paragraph 3.7.7, also states that “Raters should be particularly cautious about referring to charges preferred, investigations, or boards of inquiry, or using information obtained from those sources, or any similar action related to a member, that are not complete as of the close-out date of the report.”  He states, since he was still in court defending himself, comments on a case that was not complete should not have been allowed.  AFI 36-2406, Paragraph 3.7.6 states, “Prior events gives the rater a chance to include events (negative or positive) that add significantly in the ratee’s next report if this one is closed.”  So there was no need to rush and have it included in this report due to its close out date.

In reference to paragraph g, he states that he was acquitted of committing any crime.  Paragraph h incorrectly references his case with the Family Advocacy Office.  No case of family abuse was ever entered against him, a case of emotional maltreatment was.  The Family Advocacy Center did not have any proof of him doing anything wrong.  They recommended that he take classes on stress and anger due to all that was happening in his life on a volunteer basis.  He knew this and sought help in November 2000 at the mental health flight.  He feels that his completion of the recommended classes and additional classes he volunteered for, along with counseling started prior to Family Advocacy to be a benefit to himself.  He fails to see how seeking clinical help is something you should be punished for on an EPR.

He hopes the Board can see why he believes that this EPR was unjustly and unfairly downgraded to an overall rating of a “3” one week after returning the news that he was acquitted of committing the more serious of the three accusations made against him.  He feels that he should not be punished for being acquitted or seeking clinical help.  Furthermore, if punishing him a second time for the charge of drunk in public, at his home, after he paid his debt to the court system is warranted, he believes that a referral EPR with an overall rating of a 3 is excessive when you take into consideration the remainder of his EPR marks.  He hopes the Board can try to understand his feelings of despair he felt that one-year.

A copy of applicant’s response, with attachments, is attached at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

AF/JAG states that the squadron commander appealed to the ERAB to have the originally processed report substituted--with such appeal being subsequently approved.  The Secretary of the Air Force established ERAB to assess just such requests to correct evaluation reports.  They reviewed the ERAB process in this case and can see no reason for the AFBCMR to upset its findings.

In summary, the commander explained to the ERAB that when she received the draft of the applicant’s EPR for initial review, the marking and ratings raised a red flag in her mind.  When reviewing the draft, she raised the issue of the apparent discrepancy between rating the applicant’s conduct as unacceptable and still endorsing an overall “5” for immediate promotion.  She believed that she could not concur on the ratings and indicated in the remarks section of the EPR cover sheet that the rater and additional rater were to “reevaluate markings,” and also circled and question-marked the overall “5” rating.  When the EPR came back to her for final review and signature, she explains that out of habit she initiated the EPR cover sheet and indicated “signed.”  After signing the commander’s review section, however, she noticed that the markings and ratings had not been changed.  Although the commander intended to hold the EPR for further discussions with the raters, it was inadvertently sent out in final version.  Therefore, although the final EPR indicated that “Concur” was marked in the commander’s review block, she never actually marked (or authorized someone else to do so on her behalf) either the “Concur” or “Nonconcur” box.  In the commander’s application, she acknowledged a lack of personal organization and that she had not handled the situation effectively.

While the applicant contends that the substitution of EPRs was unlawful and unfair, there is no evidence to indicate that the ERAB in any way abused its discretion.

Of note, the applicant argues that AFI 36-2406, Paragraph 3.7.8 prohibits reference to the September 2000 charges--the Assault With a Deadly Weapon charge that ended in acquittal and the less included Simple Assault charge that ended in a hung jury.  Paragraph 3.7.8 does provide that it is inappropriate to consider “any action against an individual that resulted in an acquittal.”  However, the comments on AF Form 77 cite only to the incidents leading to his arrest and the actual arrest, not to any subsequent charges or actions that may have resulted therefrom.  Moreover, even if reference to the “arrest” were omitted, there would still be a sufficient basis to uphold the ERAB decision (based upon both the conduct underlying the arrest and the other two incidents).

In conclusion, JAG believes the actions taken by the squadron commander and the ERAB were in accordance with applicable regulations.  The applicant did not provide sufficient evidence to show that the process in changing the EPR was defective or that the referral comments were erroneous or unjust.  Therefore, they recommend denial of applicant’s request.

A copy of their evaluation is attached at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant states that he still believes there was no proof of any misconduct by himself other than the one-time incident of being charged with drunk in public while at his own home.

He argued the section commander’s decision to change his EPR due to a clerical error was unfair, largely due to the fact that at the time he felt that it was wrong to wait until a verdict of not guilty was handed down to change his EPR.  He had the feeling that his command section was anticipating a different verdict and waited to take action.  The report was already overdue by months, so its contents had been reviewed and allowed to pass.  No paperwork was given to him at the time it became a matter of record to indicate a problem with the report.  It would be customary to have a Form 77 ready along with supporting documents for a drastic change in rating.  An error in a single box would have been easily explained with those documents.  He just didn’t feel the answers he was getting justified the claim that someone else marked the box, knowing how important an EPR is to someone’s career.

The applicant indicates that the statement made by the JAG (that an argument degenerated into a physical fight and from this he stabbed his brother-in-law) is not fully true.  He did not feel that he gave up his right to defend himself in his decision to defend his country.  It was in the courtroom statements of the witnesses and Mr. L--- (his brother-in-law) under oath, along with the letter provided by him that collaborated these facts and won him a “not guilty” verdict on the charge of assault with a deadly weapon-the only charge at the time of his arrest.  It was on the last day of the trial that the district attorney added the lesser charges of “simple assault, and battery.”  He was found not guilty of the simple assault, and the jury could not convict on battery charge.  The district attorney could not convince the jury he had even pushed Mr. L--- in a manner other than to defend himself for the charge of battery.  The trial ended with a not guilty verdict, and the judge ruled that the lesser charges could not be re-tried, as they were not the original charges.  As for the claims against him of emotional maltreatment against his family, Captain M--- of the Family Advocacy submitted a letter stating that there was no proof of any wrongdoing on his part.  The accusations of emotional maltreatment, or as they defined it of having possibly raised his voice with family members in the house, was never proven.  It was just substantiated on the possibility it could have happened.

He hopes the Board will see that just being accused in these incidents does not mean he was guilty of doing anything to discredit himself or the Air Force.  He was attempting to leave when he was attacked, but he did not have time to run from or avoid the attack.  The claim of emotionally abusing his family members could not be disputed, as there was no proof to dispute only assumptions.  At the time of the EPR his duty performance was considered exceptional, as per the comments and other marks in the EPR, and his personal records contained no derogatory comments.

A copy of applicant’s response, with attachments, is attached at Exhibit I.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice warranting voidance of the contested report.  After reviewing the evidence of record, we are persuaded that the original EPR closing 7 March 2001 and the corrected report were influenced by charges against the applicant, which had not been finalized.  Whether or not the final court decision would change the ratings on the contested report is not known.  However, we believe that under the existing circumstances, the EPR in question should be declared void.  We have noted the applicant’s request that the Promotion Recommendation on the contested report be upgraded to a the highest rating and are not inclined to approve such relief, believing instead that, based on the circumstances of this case, by voiding the contested report, he will be afforded proper and fitting relief.  Our opinion in this regard is based on the fact that while the actions against the applicant had not been finalized, it appears that he did exhibit some questionable behaviors during the rating period of which the evaluators were well aware and which were properly recorded by his rater and additional rater in their comments.  It is our opinion that under any circumstances, the cited comments would have had an impact on the promotion recommendation.  Accordingly, the applicant’s request that the rating be upgraded is not favorably considered.  

4.  In view of the relief we propose, the applicant should be provided supplemental promotion consideration by all appropriate cycles.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the Enlisted Performance Report, AF Form 910, rendered for the period 8 March 2000 through 7 March 2001, be declared void and removed from his records.

It is further recommended that applicant be provided supplemental consideration for promotion to the grade of technical sergeant for all appropriate cycles beginning with cycle 01E6.  

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 qualification 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 applicant was promoted to the higher grade on the date of rank established by the supplemental promotion and that applicant is entitled to all pay, allowances, and benefits of such grade as of that date. 

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The following members of the Board considered this application in Executive Session on 2 April 2003, 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 13 Jun 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPPWB, dated 22 Aug 02, w/atch.
   Exhibit D.  Letter, AFPC/DPPPEP, dated 27 Aug 02, w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Aug 02.
   Exhibit F.  Applicant's Response, dated 23 Sep 02,w/atchs.
   Exhibit G.  Letter, HQ USAF/JAG, dated 6 Dec 02.
   Exhibit H.  Letter, AFBCMR, dated 14 Jan 03.
   Exhibit I.  Applicant’s Response, dated 11 Feb 03, w/atchs.

                                   Panel Chair

AFBCMR BC-2002-01959
INDEX CODE:  111.02

MEMORANDUM FOR THE CHIEF OF STAFF

	  Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to, be corrected to show that the Enlisted Performance Report, AF Form 910, rendered for the period 8 March 2000 through 7 March 2001, be, and hereby is, declared void and removed from his records.

	It is further directed that applicant be provided supplemental consideration for promotion to the grade of technical sergeant for all appropriate cycles beginning with cycle 01E6.  

	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 qualification 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 applicant was promoted to the higher grade on the date of rank established by the supplemental promotion and that applicant is entitled to all pay, allowances, and benefits of such grade as of that date.

		Air Force Review Boards Agency