RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01974
		INDEX NUMBER:  111.02; 131.00
	XXXXXXXXXXXXX	COUNSEL:  XXXXXXXX

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered on him for the period 31 Jan 01 through 30 Jan 02 be voided and removed from his records.

His line number for promotion to master sergeant (MSgt) for cycle 02E7 be reinstated.

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APPLICANT CONTENDS THAT:

The original appeal package submitted by his counsel to his supporting military personnel flight (MPF) was lost, so he is submitting the package to the AFBCMR.

The referral EPR written on the applicant was not processed in a timely manner, resulting in his being notified of his selection for promotion although the referral EPR made him ineligible.

His rater originally wrote him a firewall “5” EPR, but was required to rewrite it to include mention of a past incident of “purported sexual harassment” of a female subordinate.

The EPR constitutes an error or injustice because the incident that made it a referral occurred at a different squadron under a different commander, under a different supervisor, during a different rating period.

The rating period on the EPR begins in Jan 01, but should have started in Jul 01 at the earliest.  He was reassigned in Jul 01 as a permanent change of assignment and it was during the earlier period that he received a non-punitive letter of reprimand (LOR), which he was informed would not further adversely affect his career.  

The Military Equal Opportunity (MEO) investigation was completed in Jun 01 and he received a letter of reprimand in Jul 01.  It took six months for this unfavorable information to be placed in his EPR and was ultimately prejudicial because of its impact on his selection for promotion.

The EPR was in violation of AFI 36-2406 in that it did not document unsatisfactory conduct within 120 days.  Further, it was improper for the rater to document the alleged misconduct since he was not the applicant’s supervisor during the period it occurred and also did not have 60 days of supervision as required for referral reports.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 12 Jan 84.  He is presently serving on active duty in the grade of technical sergeant (TSgt).  A resume of his last ten EPRs follows:

	Closeout Date				Overall Rating

	  2 Nov 94					5
	  1 Jul 95					5
	  1 Jun 96					5
	  1 Jun 97					5
	  1 Jun 98					5
	  1 Jun 99					5
	 30 Jan 00					5
	 30 Jan 01					5
	*30 Jan 02					4
	 16 Jun 02					5

* Contested referral report

The applicant was selected for promotion to MSgt during cycle 02E7 per Promotion Sequence Number 2612, which would have incremented on 1 Jan 03.  However, the referral EPR automatically cancelled his promotion in accordance with AFI 36-2502.

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AIR FORCE EVALUATION:

AFPC/DPPPE recommends denial of the applicant’s request.  The LOR the applicant received on 16 Jul 01 was based on seven substantiated findings by the MEO office.  A couple of weeks later the applicant was apparently reassigned to another unit on base (no documentation has been provided to indicate the exact date).  An annual report was rendered on 30 Jan 02, as required, and the LOR was documented in the EPR by the rater in the new unit (causing the report to be referred).

The statement submitted by applicant’s counsel contains several flaws in the interpretation of AFI 36-2406.  The applicant’s previous EPR closed out 30 Jan 01.  Providing he had sufficient supervision at the time he changed units, a change of reporting official report would have been required.  However, no documentation has been provided to indicate the applicant had the required 120 days of supervision (or 60 days had the rating chain decided to render a referral report at that time).  Applicant’s counsel states “unfavorable information should perhaps not been included in any report …”  However, this contradicts AFI 36-2406, which strongly encourages evaluators to comment on adverse actions such as Article 15s, LORs, etc.  They note that the applicant himself quoted this same paragraph, but apparently did not read it in its entirety, stopping before the part of the paragraph that clearly includes LORs as adverse information for raters to consider.  His counsel is also wrong in stating that a report is due within 120 days to document unsatisfactory conduct and that it was improper for the applicant’s new rater to document the LOR.  AFI 36-2406 does not state that the report must be completed within 120 days, rather that there must be 120 days of supervision to render a report (or 60 days in the case of a referral).  Further, many Air Force members have reports written on an annual basis where the rater at the beginning of the period is not the one who writes the report at the end.  Raters have the responsibility to get meaningful information from the ratee and as many sources as possible, to review any adverse information in the ratee’s Personal Information File (PIF), and to review any Unfavorable Information File (UIF) prior to preparing the report.  The rater would have actually been in violation of the AFI if he had not considered the LOR in his assessment of the applicant.

The humiliation the applicant states he experienced because the report was not processed in a timely manner is also not grounds to void the report.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPPWB verifies that the referral EPR automatically cancelled the applicant’s promotion to MSgt in accordance with applicable Air Force directives.  They defer to AFPC/DPPPEP’s recommendation to deny the applicant’s request to void the report.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations, the applicant stated that he has provided a copy of his appeal to the Evaluation Reports Appeal Board (ERAB) that was lost to show that he did submit his appeal through the proper channels.  He also provides documents to verify when he was reassigned to a new unit.  The applicant further provides extracts from AFI 36-2406 to verify that he had read the entire paragraph pertinent to including adverse information in an EPR.

The applicant indicates that the rater on the referral EPR wrote him an outstanding character reference.  He also notes that the rater only had 180 days of supervision.  He asks what happened to the other 180 days of supervision.  He also states that his EPR does not correlate with the performance feedback he received during the period   The applicant states that his commander that issued him the LOR advised him that the incident would not affect his military career.  There was nothing said about writing a referral report.

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

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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; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note the applicant’s contention that his commander advised him that the LOR would not have an adverse impact on his career.  However, the copy of the LOR provided clearly indicates the commander’s intent to file the LOR in the applicant’s unfavorable information file.  Given the normal retention period of one-year, the LOR would clearly have been a matter of record even during the period the applicant states he should have been evaluated.  The applicant has provided insufficient evidence to support his contention that he has been unfairly held accountable for his misconduct.  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 issues 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 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 Docket Number BC-2003-01974 in Executive Session on 6 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPPE, dated 7 Jul 03.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 15 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 15 Aug 03.
    Exhibit F.  Memorandum, Applicant, undated.