RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01526
		INDEX CODE:  134.02, 131.01

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

Air Force Form 475, Training Report, dated 13 September 2001, be voided, a new Promotion Recommendation Form (PRF) be accomplished and he receive consideration for promotion by the CY02B Major Central Selection Board, Special Selection Board (SSB).

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APPLICANT CONTENDS THAT:

He was unfairly accused of plagiarism while a student at the USAF Weapons School at Nellis AFB, NV.  He was eliminated in the 20th week of the 23-week school with reason given as “Failure to Meet Academic Standards.”  He contends he was told he would be issued a training report (TR), as a result of his elimination, which would be generic, non-punitive and would not mention plagiarism.  He contends he received the TR eight months after being eliminated and felt his situation was further exacerbated when he found out the TR was placed in his official record without having been referred to him.  He applied to the Evaluation Reports Appeal Board (ERAB) to have the TR voided.  On 17 May 2002, his request was denied, however, the ERAB directed the TR be referred to him.  The TR was referred on 18 July 2002, ten months after it was accomplished.  The applicant responded with a ten-page response he felt was hindered by the then yearlong delay of the process.  He met the CY02B Major Central Selection Board and was non-selected.  He contends a briefer at AFPC indicated his non-selection to major was directly attributable to the TR.  

The TR is in error because it unfairly implies he committed plagiarism and he was denied a meaningful opportunity to gather substantial, timely information to assist in the referral process.  He feels had school officials believed he had committed plagiarism he should have been punished for either making a false statement, conduct unbecoming an officer or for service discrediting conduct, with either some sort of Court Martial or non-judicial punishment such as an Article 15.  He states had the school taken these steps he would have been afforded the opportunity to defend himself before a neutral and objective fact-finder as well as being given an opportunity for an appellate-type review.  He was not even read his rights when the school presented the criminal charges against him.  On inquiring about his avenues to argue his case, he was told by an academic adviser that no formal process existed for him to appeal.  Alternatively, he contends the school, in particular the commandant, held investigations behind closed doors without the applicant’s knowledge, and provided no formal or third party legal review of their findings before eliminating him from training.  He asserts the commandant committed an egregious act when he failed to recognize the TR should have been a referral, thereby causing him to wait over a year before being able to argue his appeal and present statements.  As a member of the USAF, he should enjoy the same protections that we (AF) afford all service members accused of criminal acts.  He has learned the Weapons School has since instituted a process to deal with accusations of plagiarism and asserts the school, by doing so, has tacitly acknowledged the mishandling of his case.

In support of his appeal, the applicant has provided a personal statement, copies of the TR, the ERAB application, an AFPC/DPPPE memorandum, the referral memorandum, the HQ ACC/IGQ memorandum, and memorandums of support from BG XXXXX and LTG XXXXX.

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

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STATEMENT OF FACTS:

The applicant is currently serving as a captain on active duty, with the XXXXX Air Force in XXXX.  He began USAF Weapons School on 29 January 2001 and was eliminated in May 2001 due to failure to meet academic standards.  He was issued a TR dated 27 September 2001.  He applied to the ERAB requesting the TR be voided.  On 17 May 2002, the ERAB denied relief stating the evaluation report was considered an accurate assessment when rendered.  However, the ERAB determined the TR was a referral.  The referral request completed the ERAB’s action and the case was closed on 13 September 2002.  He applied to the ERAB twice more, 13 September 2002 and 18 February 2003.  The second was denied and the third was found to be without merit.  He filed a complaint with HQ ACC/IG that was forwarded to the XXth Wing commander for investigation in July 2001.  On 18 November 2002, he filed another complaint with HQ ACC/IG that was found to be too old for the IG to effectively investigate.  

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AIR FORCE EVALUATION:

AFPC/DPPPE “strongly recommends” that the Board deny the applicant's appeal to void the TR.  DPPPE states Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  DPPPE notes no evidence has ever been presented proving the statements on the TR were not accurate.

DPPPE’s complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPPO reviewed the applicant’s request for SSB consideration for promotion to major and recommends denial.  They indicate SSB consideration is not warranted in this case.  

DPPPO’s complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues a conflict of interest exists in that the same person who wrote the advisory addressing his ERAB appeal wrote the DPPPE advisory at Exhibit C.  He is concerned she is biased in favor of defending her previous decision on his ERAB appeal.  He then states it comes as no surprise that DPPPE essentially reiterates their previous analysis of his case and that the Board benefits little from their current advisory.  He states DPPPE misunderstood his case then and DPPPE misunderstands it now.

After a thorough review of the DPPPE advisory, he feels there is little concern the weapons school commandant failed to follow established referral procedures outlined in Air Force Instructions that resulted in the referral TR not being issued for nearly a year after the TR was placed in his record.  He argues DPPPE seems to be satisfied the TR was eventually referred only and overlooks the fact he was not able to submit facts and present quality and timely evidence had he known the derogatory TR was forthcoming.  He states DPPPE is incorrect in their statement the applicant “…did not state previously that he was told there would not be negative comments on the TR.  Only after the ERAB directed the report be referred did this accusation appear.”  He directs attention to the original AF Form 948, Application for Correction/Removal of Evaluation Reports, attachment 2 of his application, section 11, items 6 & 7, where he submitted testimony the commandant indeed had told him the report would be generic and would not contain negative references.  He contends it is significant DPPPE does not consider the testimony of an AF officer as constituting evidence.  Additionally, he believes his statements and those of his superiors were seemingly wholly discounted because he did not offer more, even though he was deprived of genuine due process and the timely opportunity to gather substantial evidence from possible third-party sources.  He believes, as a result of the DPPPE advisory, the system is biased against him because it assumes he cannot possibly have a valid grievance as long as the derogatory report was “eventually referred.”  Without completely restating his case, he believes he should have been given genuine due process in the form of notice and an opportunity to be heard before a neutral and detached fact-finding body before any entry was made on his record implicating him in an alleged criminal activity.  He contends the derogatory TR would still be in his record today had he not brought the error to the attention of the ERAB and just because the TR was referred does not mean all is now well as he has not had the opportunity to dispute the TR and was denied some of the most basic rights of due process afforded by the Constitution.  He asks the Board to void the TR because it was first used, and then erroneously processed, to render a verdict against him in such a way as to prevent him from contesting it in any meaningful way.

Applicant's complete response is at Exhibit E.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case to include the fact the ERAB directed the TR to be referred.  While we sympathize with his position and appreciate his logic in presenting his case, the applicant has not provided any evidence proving the statements on the TR are not accurate.  Consequently, we agree with the opinion and recommendation of the Air Force offices of primary responsibility 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.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01526 in Executive Session on 22 October 2003, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Apr 2003, w/atchs. 
    Exhibit B.  Letter, AFPC/DPPPO, dated 6 Aug 03.
    Exhibit C.  Letter, AFPC/DPPPE, dated.6 Aug 03, w/atchs
    Exhibit D.  Letter, SAF/MRBR, dated 15 Aug 03.
    Exhibit E.  Rebuttal, Applicant, dated 7 Sep 03.

                                  
                                   Panel Chair