RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03828
				INDEX CODE:  111.02

	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His  Enlisted  Performance Report (EPR) rendered for the period 26 July 2000 through 11 June 2001 and all accompanying attachments be declared void and he be considered for promotion by a special selection board (SSB).

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APPLICANT CONTENDS THAT:

He was tried by Article 15, which was terminated in March 2001, when his EPR became due in June 2001, the Article 15 was written into his EPR.

Applicant's complete submission, with attachments, 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 senior master sergeant.

A formal equal opportunity and treatment (EOT) complaint for sexual  harassment was filed by  Airman First  Class (A1C) S. on 4 December 2000 against the applicant for unwarranted comments and gestures he made to her from August 2000 through November 2000.  A complaint clarification dated 20 December 2000 was conducted and determined the allegations were substantiated.  On 20 December 2000, AAC/JA reviewed the complaint clarification and found it to be legally sufficient.  In a letter dated, 27 April 2001, the applicant appealed the findings that he sexually harassed A1C S.  HQ AFMCJA reviewed the file and found it legally sufficient and recommended the appeal be denied.  In a letter dated 12 October 2001, AFMC/DP denied the appeal.  AAC/CC denied 
the appeal on 2 November 2001.  HQ USAF reviewed the appeal and denied it on 3 April 2002.  The applicant on 5 June 2002, appealed to SAF/MRB as the final decision authority.  SAF/MRB denied the appeal on 28 August 2002.  A copy of the MEO Complaint clarification and findings is at Exhibit C.

The applicant appealed the contested report under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluations Reports.  The Evaluation Reports Appeal Board (ERAB) denied the request stating the applicant did not prove the Military Equal Opportunity (MEO) complaint referenced on his EPR was erroneous.

EPR profile as a senior master sergeant reflects the following:

			PERIOD ENDING 			OVERALL EVALUATION

			  25 Jul 99					5
			  25 Jul 00					5
			 *11 Jun 01					3
			  11 Jun 02					5

* Referral/Contested report.

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AIR FORCE EVALUATION:

AFPC/DPPPE states the EPR in question does not mention the Article 15.  Although the Article 15 may have been adjudicated, that does not mean the incidents cited within the Article 15 did not happen.  The fact remains the applicant was accused of committing several sexual discriminating acts against at least two individuals, which were substantiated by the Military Equal Opportunity (MEO) office.  In accordance with Air Force policy evaluators must consider an individual’s commitment to EOT when evaluating performance and making a promotion recommendation.  Furthermore, evaluators must reflect serious and repeated occurrences of discrimination, to include sexual harassment, as prescribed in directives governing the Military Equal Opportunity and Treatment Program.

The supporting documentation the applicant provided from the rater and additional rater appears to be giving their retrospective views of their evaluation.  The applicant contends that senior leadership “kicked back” the EPR in order to include the MEO complaint.  In accordance with AFI 36-2406, Table 3.2, line 20, “Evaluators should discuss disagreements when preparing reports.  Prior evaluators are first given an opportunity to change the evaluation; however, they will not change their evaluation just to satisfy the evaluator who disagrees.”  The applicant has not provided any evidence to substantiate that his rating chain was forced to change the evaluation.  Furthermore, 
Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Therefore, based on the evidence submitted they recommend the applicant’s request to have the EPR for the period ending 11 June 2001 voided be denied.

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

AFPC/DPPPWB states the first cycle the contested EPR would possibly be considered in the promotion process is the 01E9 cycle.  Since, the EPR is a referral it renders the applicant ineligible for promotion consideration according to AFI 36-2502.  They further state if the Board voids the EPR in question, providing he is otherwise eligible, the applicant will be entitled to supplemental promotion consideration beginning with cycle 01E9.  DPPPE recommends the applicant’s request to void the EPR be denied.  DPPPWB defers to their recommendation.

A complete copy of their evaluation is attached at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states although the Air Force evaluation stated, “while the applicant’s Article 15 may have been adjudicated, that does not mean that the incident cited within the Article 15 did not happen.  The applicant responded that it does not mean the incidents cited did happen either; the Article 15 was determined before the judge (his commander) and terminated.

He states he was only accused of sexual discrimination by one individual, which was never proven, because it was not true.  The other individual never filed a complaint against him.  The MEO took it upon themselves to include her as an accuser to help substantiate their false case against him.

The advisory states there are no errors or injustices cited in the applicant’s EPR.  This is unethical and an injustice to write or mention a negative comment in his EPR regarding the MEO substantiation after a higher authority adjudicated it.  He would have been promoted if it were not for the unethical EPR.

He further states if the AFBCMR denies his appeal they will be sending the message that MEO substantiation is of a higher legal authority than an Article 15 proceeding, which was adjudicated. 

Lastly he stated the military should support due process of law, as does the civilian sector (Exhibit G).

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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.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  Essentially, the applicant alleges that since the Article 15, accusing him of sexual harassment toward two female airmen, was adjudicated by his commander, it should not have been used as the basis for the contested referral report.  A review of the contested report reveals no mention of the Article 15.  Rather, it would appear that the contested report was prepared in response to the findings of the Military Equal Opportunity office substantiating sexual harassment by the applicant.  The statements from the rater and reviewer are duly noted; however, we find no persuasive evidence that these individuals were coerced into changing their initial rating of the applicant.  Interestingly, the reviewer/commander of the contested report has not provided a statement in the applicant’s behalf; however, it is noted that he was the same individual who adjudicated the Article 15.  Further, we find no persuasive evidence that this is not an accurate assessment of the applicant’s total performance during the contested time period.  His duty performance is not being called into question; however, his judgment and professional qualities were certainly lacking during this time frame.  The applicant’s conduct toward a junior service member was egregious and as such, by regulation, was required to be reflected on the contested report during the evaluation of his performance and potential for promotion.  In view of the above findings, we agree with the opinions and recommendations of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling 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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered AFBCMR Docket Number 02-03828 in Executive Session on 11 March 2003, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 22 Nov 02, w/atchs.
	Exhibit B.	Master Personnel Records.
	Exhibit C.	MEO Complaint-withdrawn.
	Exhibit D.	Letter, AFPC/DPPPE, dated 7 Jan 03.
	Exhibit E.	Letter, AFPC/DPPPWB, dated 8 Jan 03.
	Exhibit F.	Letter, SAF/MRBR, dated 17 Jan 03.
	Exhibit G.	Applicant’s Response, dated 23 Jan 03.