RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02009

	XXXXXXX	COUNSEL: NONE

	XXXXXXX	HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered for the period   26 July 2000 through 4 December 2000 be removed from his records and he receive supplemental promotion consideration to chief master sergeant (E-9) for the 01E9 promotion cycle.

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APPLICANT CONTENDS THAT:

On 27 February 2001, he received a reprisal EPR for filing a HQ AETC Inspector General (IG) complaint against his then squadron commander, Lt Col L___.  Specifically, he was reprised against on the EPR by CMSgt J___, Maj S___, Lt Col L___, and Col C___.

He sought redress to the reprisal EPR by filing a HQ Air Force IG complaint.  HQ Air Force IG refused to conduct its own investigation and refused to interview key personnel in his direct reporting chain who would corroborate the reprisal, namely, Col J___, XXth Logistics Group Deputy Commander, and CMSgt R___, XXth Logistics Group Superintendent.  

Beyond being a gross injustice to his military record and an inaccurate representation of his military service, this reprisal EPR continues to have a detrimental impact on his career progression and opportunities.  

In support of the appeal, applicant submits a personal statement, a letter from Senator XXXXXXX, copies of EPRs, performance Feedback worksheets, character reference statements, award nomination submissions, E-9 promotion score sheet, HQ AETC IG complaint w/atchs, a Freedom of Information request, a redacted copy of the Commander Directed Investigation, and a Military Equal Opportunity (MEO) complaint.

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

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STATEMENT OF FACTS:

The applicant is currently on terminal leave in the Regular Air Force in the grade of senior master sergeant.

On 20 November 2000, the XXth Maintenance Squadron Commander removed the applicant from his position as Avionics Flight Chief.

On 19 January 2001, a Commander Directed Report of Investigation (CDI) was conducted on the applicant and his command chain into allegations of gender discrimination from a female squadron member.  Based on the documentary evidence, the investigating officer found all allegations made by the female member were unsubstantiated.  However, it was the investigating officer’s opinion that the applicant and the female member are equally to blame for the events that brought about the investigation.  As Air Force senior NCOs they should have possessed the maturity and the leadership skills to solve their personality conflict and not embroil their subordinates, peers, and superiors. Their unprofessional actions were inexcusable (see CDI at Exhibit C).

On 16-27 February 2001, a Commander Directed Report of Investigation (CDI) was conducted into the applicant’s allegations of wrongful removal from his position.  The CDI concluded that the commander made the right decision to remove the applicant from his position.  The managerial and leadership skills that were successful for him in the Accessories Flight were not appropriate for the management of the Avionics Flight. The applicant did not evaluate the group dynamics of this new flight and modify his managerial methods to deal with a different situation and a different set of personnel—these were professional, not the Animal House Flight.  The rationale used by Lt Col L__ documented in his memo for record was accurate and justified removing the applicant. (see CDI at Exhibit D).  

In response to applicant’s 24 April 2001 complaint to the DOD IG, a Military Whistleblower Reprisal Preliminary Analysis was conducted on 4 October 2001. The HQ AETC/IG, DOD IG, and SAF/IGQ all concurred that no investigation was warranted under Title 10, U.S. Code, Section 1034 (see HQ AETC/IGQ Report at Exhibit E).

EPR profile since 1997 reflects the following:

          PERIOD ENDING	OVERALL EVALUATION

           25 Sep 97                     5
           25 Sep 98                     5
           25 Jul 99                     5
           25 Jul 00                     5
      *    04 Dec 00                     5
           04 Dec 01                     5
           05 Dec 02                     5
     *  Contested report.
The first cycle the contested EPR was used in the promotion process was cycle 01E9 to Chief Master Sergeant (promotions effective January-December 2002).  His board score was 285.00 and his total promotion score was 550.58. The score required for selection in his AFSC was 639.75.  His board score for cycle 02E9 was 322.50, total promotion score was 600.08, and the score required for selection was 653.66.

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AIR FORCE EVALUATION:

AFPC/DPPPE reviewed this application and recommends denial.  The applicant contends that the 4 December 2000 EPR is unjust because the markdown in section III, block 3 was based on retribution.  While the applicant cites several “reasons” why he believes his rater and commander were biased toward him due to his filing of an IG complaint, he has not provided any substantiated evidence.  The three supporting statements provided are vague and draw their own conclusion of reprisal.  Specifically, the statement from Col B__ states “in his opinion” and the memo from Capt V__ clearly states “seemingly” and “if this occurred,” which draws the conclusion that this is also only their opinion.  The last memo from CMSgt R__ states he was in the applicant’s rating chain, but nowhere in the applicant’s record does it show Chief R__ as a rater.  Further, his memo was written nearly three years after the fact and no explanation was provided as to why he didn’t act as a member of the rating chain to stop the “injustice” at that time.  Also, the IG complaint was not substantiated and it is very improbable that his entire rating chain corroborated in a scheme to end his career.  It is important to note that the applicant had the same rating chain for his previous evaluation (which was a “firewall” 5 (all markings were to the far right); although, IAW AFI 36-2406, para 3. 7. 3, it is inappropriate for evaluators to consider previous reports or ratings.  Paragraph 3.2.1.3. states, “The rater assesses and documents what the ratee did, how well he did it, and the ratee’s potential based on that performance.”  It is clear that this rating chain believed in the applicant’s previous report that he was a “firewall” performer; however, their opinion changed based on his performance during the rating period 26 July 2000 through        4 December 2000.  

Additionally, the applicant states that no negative feedback was provided by either the rater or the commander indicating his performance had any shortcomings, which warranted a markdown. The fact that he was not informed formally that his performance was lacking does not mean he wasn’t counseled verbally on a daily basis about his performance.  In fact, the IG investigation findings specifically state he was counseled on numerous occasions concerning his leadership skills.

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  There are no errors or injustices cited in the 4 December 2000 EPR.  He has not provided any supporting evidence to indicate the EPR was unjust.  The IG investigation, as well as the CDI, clearly state the applicant’s claims are unsubstantiated, and the member himself states that he was removed from his job as Avionics Flight Chief due to the fact that his avenues to address his allegations through formal investigations were conducted, and none found evidence in his favor to support his allegations.  

AFPC/DPPPE complete evaluation is attached at Exhibit F.

AFPC/DPPPWB reviewed this application and states the first time the report was considered in the promotion process was for cycle 01E9 to Chief Master Sergeant (promotions effective Jan-Dec 02).  Should the AFBCMR grant his request, providing the applicant is otherwise eligible, he will be entitled to supplemental promotion consideration beginning with cycle 01E9. 

AFPC/DPPPWB complete evaluation is attached at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations and stated again, he is asking the AFBCMR to remove the EPR, period of report: 26 July 2000 through 4 December 2000, from his records based on the grounds that it was unjust and a reprisal action.  Once the EPR is removed from his records, he asks the AFBCMR to recommend the convening of a Supplemental Promotion Board to reconsider his promotion to E-9 during the cycle 01E9 (2001).  The reprisal EPR has virtually eliminated any possibility of him being promoted and selected for certain duty assignments.  He has presented ample substantiated evidence, documentation, and witness statements clearly attesting to the wrongdoings and reprisal actions he suffered at the hand of his commanders.  He truly hopes and prays for your fair and objective consideration and the just resolution of his case.  He requests again, the opportunity to appear before the AFBCMR to personally present his case, if the Board so desires.

Applicant’s complete response, with attachments, is at Exhibit I.

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ADDITIONAL STATEMENT SUBMITTED ON BEHALF OF APPLICANT:

In a letter of 12 January 2004, Major P___, stated from May 1999 until April 2001, he was the Logistics Support Commander at Kirtland AFB, NM.  He worked on a regular basis with the applicant monitoring the repair cycle of aircraft reparables.  They also were the wing representatives for bedding down the CV-22 aircraft at Kirtland AFB and traveled TDY together in support of that task.

Regarding the allegations against Lt Col L__.  He had a very close working relationship with Lt Col L__, as they were the only squadron commanders in the Logistics Group.  They worked together on a daily basis, attending multiple meetings both official and private.  He would add that at one point in time he was Lt Col L__’s best friend at Kirtland AFB.  On one occasion, Lt Col L__ was making remarks aloud in his office calling the applicant “a disloyal traitor.”  He stated that he had observed nothing but professional work from the applicant and would be more than happy to have him in his squadron.  Lt Col L__ then asks him, “Good.  You want him, you can have the son of a bitch as you get every fired NCO in the wing.”  It was a true statement that he had previously been forced by the command structure to take at least three senior NCO’s that had been fired by Lt Col L__, into LSS.  

His testimony is especially relevant as his officer performance report for 17 March 2000 to 16 March 2001 was removed by the Air Force Board For Correction of Military Records (BC-2003-00246 BCMR Case 01, see Exhibit I) in July of 2003 for the following reasons:

	- Ratings and Comments Inconsistent with Prior Evaluations
	- Personality Conflict
	- Undue Emphasis on Isolated Incidents
	- Lack of Counseling and Feedback

His allegations were against Col P__, Col C__ and CMSgt S__.  The very same chain of command that the applicant worked for, with the exception of Lt Col L__.  The applicant and he had similar treatment and lack of success in dealing with the XXth SOW command structure.  The similarities in the applicant’s case and his should not be surprising, as that was the normal mode of operation for the XXth SOW.  He is living proof, the XXth SOW leadership has a track history of failing to provide feedback, in some cases refusal to discuss items was experienced by him as well.  In his case, the Air Force IG also refused to investigate.  He experienced a XXth SOW command structure that was biased, illogical and impossible to deal with, the same as the applicant.  If you weren’t in CMSgt S__’s clique, you were doomed to failure by the wing commander.

To summarize, he found the applicant’s performance outstanding and his integrity was without question.  He performed his duties as directed, as required, and was simply not supported by the very chain of command that directed his efforts.  He believes he as never provided with negative feedback by his chain of command as he was aware of his situation as it was happening with added advantage of hearing his side and his squadron commander’s side of the story simultaneously in confidence.  The applicant’s treatment was completely unacceptable. The injustice can never be fully corrected, however, the best that can be done at this point in time is to remove his reprisal EPR as required and give him a fair chance to compete for Chief Master Sergeant, a rank he so truly deserves.  He is amazed that after his treatment, he is still in the United States Air Force, and he believes that fact alone is testimony to the type of dedication the applicant possesses.

In a letter of 28 April 2004, Capt v___, stated the leadership of the XXth SOW removed the applicant from his supervisory position and suddenly told him that he was not properly carrying out his responsibilities.  This, despite the absolutely flawless career record and highest of accolades and awards his units had previously bestowed upon him.  Never in his career had he seen an abrupt change in the rating of a performance report than the one the applicant received for the latter part of 2000, compared to every previous report.  Nevertheless, the applicant wisely knew that if he had professionally carried out his duties as lawfully directed by his command, he should have nothing to answer for.  Therefore, he filed an IG complaint to ensure his record would not suffer, despite the impropriety of his unit’s leadership.

As a result of the IG investigation, the applicant’s performance report (for a mere four and a half month period) suddenly went from superstar, to mediocre.  The timing itself should be strong evidence of the impropriety, particularly in light of the supporting statements by others who witnessed his performance during that period.  

Yet, one other, and in his mind very significant, aspect of this case has crystallized his belief that the leadership in the XXth SOW did act wrongfully.  In his years as the Area Defense Counsel at Kirtland AFB, he was privy to a great deal of confidential information relating to the actions of certain individuals, including leadership personnel.  There was a constant state of information regarding the actions of commanders, specifically with the XXth SOW, that disturbed him from legal, ethical, and military perspective.  Without a doubt, and without divulging any confidences received from his clients, he can unequivocally state that the applicant’s allegations are neither unique nor isolated. His experience was one of many where certain leaders in the 58th SOW were not only lacking core values, but were patently abusive.  Within the organization, there were clearly preferential treatment, sliding scales of expectations, and disparate use of management tools depending on what “clique” you were in.  In his mind, there is no doubt the applicant was reprised against for his filing of an IG complaint, with the objective of furthering select individuals’ careers.

The applicant has fought this battle for three years, with little or no positive results.  His tenacity and conviction for doing the right thing have carried him this far.  Certainly a victory on principal can be the only justification for his unending quest, because a promotion, even to chief master sergeant, could never be worth the sacrifices and bitterness he has endured.  In sum he hopes the BCMR will see the overwhelming circumstantial proof that the applicant has presented and give him the deserved benefit of any doubt in this matter.  He is by far the best Senior NCO he has had the pleasure of representing, and the Air Force deserves more chief master sergeants like him.  His only regret is that he could not do more to rectify this injustice served against the applicant. 

In a letter of 29 April 2004, Col B__ stated as the former XXth Deputy Logistics Group Commander, he was in the applicant’s direct chain of command during the report period of his subject reprisal EPR.  Over the last three plus years, he has strongly supported the applicant’s efforts to have the injustice done to him corrected.  He deeply regrets he will not be able to attend his hearing but nevertheless, he wishes to make a formal written statement in lieu of a personal appearance before the Board in unequivocal support of the applicant. 

As a result of the reprisal EPR, the applicant’s opportunity for promotion to chief master sergeant was completely eliminated and in essence, his military career progression effectively killed.  This is terrible and blatant injustice that he implores the Board to correct.  The applicant is the epitome of the Air Force Senior NCO, possessing the highest standards of integrity, professionalism, and leadership.  Notwithstanding this reprisal EPR, the applicant’s career has been absolutely stellar from the very beginning.  The applicant was clearly tracked by his commanders to be a chief master sergeant.  If it weren’t for the reprisal EPR he received at the hands of his vindictive commanders in the 58 SOW, the applicant would have been a chief master sergeant three years ago.  

The gross and outrageous injustice is clearly evident in the manner in which the certain XX SOW commanders retaliated against the applicant for upholding the standards and responsibilities of an SNCO and rewarding MSgt B__ for her substandard, insubordinate, and disrespectful behavior.  The applicant received a reprisal EPR and MSgt B__ received a “fire-wall five” EPR with senior rater’s indorsement.  It is sickening to think that this corruption and treachery could happen in our Air Force today, but it did.  If words such as “accountability,” “responsibility,” “service before self,” and “integrity in all we do” mean anything in our Air Force, this abomination must be rectified by removing the reprisal EPR from the applicant’s records and convening a Supplemental Board to consider his promotion to chief master sergeant in the cycle immediate following the reprisal EPR.

It is unequivocally clear for anyone who review’s the applicant’s case that he was cast aside and sacrificed by his commanders as they insidiously postured to protect their own careers and promotion potential.  In his 27 years in the Air Force, he has never seen such a clear-cut case that warrants recompense and relief.  He is eager to provide any further information the Board requires to support the applicant’s case.

In a letter of 5 May 2004, CMSgt R__, stated that he wanted to immediately and specifically address the direct issues that led to the reprisal actions against the applicant.  As the “hand-picked” Avionics Flight Chief in the 58th Maintenance Squadron, the applicant took the appropriate corrective counseling actions to address the substandard performance of MSgt B__.  These corrective measures were directed and supported by his chain of command to include his immediate supervisor, CMSgt J__ and his unit Commander, Lt Col R__.  As a result, MSgt B__ filed a completely unsupported and unsubstantiated Military Equal Opportunity (MEO) complaint against the applicant and the unit leadership.  Her actions triggered an immediate rush by the commander and supervisor to ensure no negative impact on their own careers by refusing to support the applicant, even after the formal investigation revealed and determined no basis or truth to the MEO complaint.  The unit commander, to further ensure he pleased senior leadership in the wing who could impact his own career, removed the applicant from his key leadership position and downgraded his Enlisted Performance Report.  

As the Senior Enlisted Manager for the Group, he completely disagreed with this unfair action.  Senior wing leaders however, prevented him from correcting this blatantly unjust reprisal.  They tried to justify their actions by claiming that the applicant’s performance and leadership skills were not up to standards.  Nothing could be farther from the truth.  The applicant’s stellar and unblemished career has been truly exceptional.  Anyone reviewing his record will clearly see the applicant’s dedicated and professional commitment to the Air Force through his significant accomplishments and awards.  The same senior wing leaders who based their actions against the applicant on account of his supposed poor leadership skills had selected him as the Wing Senior Noncommissioned Officer (NCO) of the Year just the year before.  The applicant went on to win the Kirtland AFB Senior NCO of the Year.  Just months before this negative action the applicant was also selected as the unit Leo Marquez Senior NCO of the Year.

The applicant through numerous investigative procedures has presented substantial and clear evidence that supports how he was wronged and unjustly cast aside by senior XX SOW leaders.  These efforts never resulted in anyone, to include himself, being contacted directly to help uncover and correct this negative action against the applicant.  As the Group Senior Enlisted Manager, he had the applicant on the top of the list for promotion to chief master sergeant, a rank he earned through dedicated commitment and work to the Air Force and his country.  Despite all the actions against the applicant, he remains a true and hardworking professional continuing to lead from the front and contributing to the success of the Air Force.  The despicable treatment of the applicant received at the hands of his supervisor and commanders should not go unchecked.  The integrity and high ethical standards of our United States Air Force demands accountability and justice.  He implores this board to review and correct the unfair negative actions against the applicant and promote him to Chief Master Sergeant.  

Complete copies of the statements is at Exhibit I.

APPLICANT'S APPEARANCE AT FORMAL HEARING:

1.  The applicant appeared before the Board and testified under oath.  During the hearing the applicant reiterated his previous contentions that he received a reprisal EPR for filing a HQ AETC Inspector General (IG) complaint against his then squadron commander, Lt Col L___.  Specifically, he was reprised against on the EPR by CMSgt J___, Maj S___, Lt Col L___, and Col C___.

2.  The following additional information was provided in response to specific inquiries by the Board members:

a.  When asked to elaborate on the reason for filing an IG complaint and reprisal action, the applicant responded by stating that in early December if not November, he was told that the Military Equal Opportunity complaint filed by MSgt B__ was not substantiated and there was nothing found.  Meanwhile, there is no question that the ATC IG complaint was filed in January, probably he thinks the 17th.  Around that time frame, maybe shortly after, Chief J__ had his talk with him and said, “Your EPR is done.  It’s a good one.  “Excellent work, outstanding,” the whole nine yards.  “Go on to Wing Plans,” his new job, “make Chief.”  However, shortly thereafter if not the first week of February, Chief J__ apparently found out about the ATC IG complaint he had filed and quite probably the rest of the chain of command.  Because Chief J__ came back and said, “Oh, by the way,” more or less, “your EPR is not done.  Chief J__ had heard that he had taken action outside the unit.  He said your EPR is not done.  It’s not going to be done on the 29th of February. Then after he got the EPR and saw the EPR, that’s when he filed the Air Force reprisal complaint.  

b.  When asked the question did he try to contact Chief J__, his rater, the applicant stated the Chief told him before he retired, “Hey, come talk to me after I retire and I will tell you the whole story.  He would tell me what he really thinks.  Well, some time after, when he retired, a friend of his who is a Major came to him and said, “Hey, you might want to get with the Chief because maybe he can help you out with this now.” Get with the Chief, called him up.  He said he would help him out.  He would meet with him and put down the truth, what really happened and how things took place.  It never happened.  Moreover, he called him probably three months later and he said he was busy with work, and he said, “Yeah, I’m be there for you. I’m going to help you out. You were done wrong.”  However, he never did so and he never pressed the issue.  To him, he got the feeling that the Chief was scared.  

c.  When asked to elaborate on the CDI conclusion that there were no reprisals, the applicant stated first, the investigating officer did not investigate the reprisal.  She was investigating, he assumed, his ATC IG complaint.  The ATC IG complaint that he filed, from what he understood, was investigated.  ATC sent the complaint back down to the wing.  Back to Col P__.  Well, Col P__ then had to basically direct somebody, one of his colonels, to do a CDI, command directed inquiry.  First off, we have a colonel in the wing, working for Col P__, who is going to investigate one of his commanders.  His opinion on that is, the subjectivity or the objectivity could be a question.  Lt Col P__ works for Col P__.  She has to report to Col P__.  Another point, sixteen people were interviewed.  He did not know who they were because there were 1,200 people in the wing.  Did they talk to any of the people he recommended or suggested--he did not know.

d.  When asked the question if there were individuals that, other than senior NCOs that had problems with his management style, the applicant stated sure.  Now we’ve kind of whittled it down to the Avionics Flight. He came in as the new Flight Chief and it came down to the new kid on the block.  He did his job as the Flight Chief, upheld his responsibilities, and corrected improper, inappropriate behavior when he saw it. Unfortunately, when you do that, you rattle people’s cages, people that are set in their ways, people that have been there for two or three years.  The majority of those shop chiefs that worked for him, and there were five, had been there between two and four years if not more.  They had all been to some degree stagnated, and that’s another thing Col L__ didn’t like.  These people had been set in their ways.  They had it nice, as Col L__ told him, cushy--he couldn’t remember the exact terminology. Unfortunately, when he tried to correct it, no matter how gentle he was, no matter how soft he was, no matter how much he held their hands, some people were going to resist.  And unfortunately we had one main player that was very defiant, very resistant, and unfortunately an informal group leader, and unfortunately very influential with the rest of the flight chiefs, or the shop chiefs.  He could understand perhaps why they were upset, because he knew that they couldn’t play ping-pong now.  He knew MSgt B__ had to come to work.  She had to show up for work on time like everyone else in the flight.  Sergeant B__ was not allowed to use disparaging remarks against a senior NCO, a Flight Chief.  He tried to work with the people as much as he could, but he knew when he saw something wrong, as the Flight Chief he had to take some sort of action.  

e.  When asked was there any justification at all for his removal and markdown in leadership, the applicant responded none whatsoever.  If there was just cause for his removal, he might agree, but he saw no reason why he should have been removed.  And there are many people that are “removed” where their careers go right on.  Nevertheless, he did nothing wrong and he did his job as a senior NCO. 

3.  Applicant's complete sworn testimony and his response to the Board's questions are contained in the Transcript of Proceedings at Exhibit K.

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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.  After carefully assessing the evidence of record, including the applicant's sworn testimony, the majority of the Board is not persuaded the applicant has been the victim of either an error or injustice.  In this respect, the majority of the Board notes the following:

		a. The findings of the Command Directed Investigation (CDI), which investigated the applicant’s allegations, revealed the applicant had not been the victim of reprisal or unfair treatment and his case was dismissed.  The CDI was reviewed by the SAF/IGS and DOD and these offices also found the applicant’s allegations were not substantiated and the applicant’s case was closed.  

		b. While the applicant was directed to correct certain problems within his organization, it appears, based on the evidence of record, that his rater was not satisfied with his leadership and management approach in solving these problems.  Relieving the applicant of his supervisory duties appears to be based on performance rather than applicant’s allegation of reprisal for filing an IG complaint.  We find no evidence that there were any improprieties in the rating chain's decision to relieve him of his supervisory duties or that his rating chain abused their discretionary authority in doing so.  The contested EPR, based on the above comments, appears to be based on the rating chain’s perception of the applicant’s performance during the period in question.  After reviewing the report, we believe that the rating chain members’ comments could have been more critical of the applicant’s performance had they desired to do so. 

		c. The applicant’s sworn testimony and the statements he provided from senior officials within his chain of command were thoroughly reviewed. However, we do not believe these statements provide sufficient justification to conclude that the actions taken by the applicant’s immediate commander were unjustified.  When asked why his supervisor did not provide a statement during the appeal process, the applicant stated that he attempted to reach CMSgt J__, but was unsuccessful.  Should the applicant obtain a statement from CMSgt J__, we would be willing to reconsider his application. 

		d. The reference to a similar case that this Board considered and granted relief was noted.  However, after reviewing the case in question, it appears that the Board believed that a personality conflict existed and based on that conflict, the individual’s performance was not accurately assessed.  In the applicant’s case, the question before this Board is whether or not his actions/performance were accurately assessed.  As stated above, we found no reason to question the rating chain members’ assessment of the applicant’s performance.  

4.  In view of the above findings, the majority of the Board believes the applicant has failed to provide sufficient evidence 
to substantiate that he has been the victim of an error or injustice.  Therefore, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2002-02532 in a Formal Hearing on 19 May 2004 and     24 June 2004, under the provisions of AFI 36‑2603:

By a majority vote, the Board recommended denial of the applicant's requests.  XXXXXX voted to grant the applicant's request, and elected to submit a minority report.  

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 28 Apr 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Commander Directed Investigation, dated 19 Jan 01. W/D
   Exhibit D.  Commander Directed Investigation, dated 27 Feb 01. W/D
   Exhibit E.  Letter, AETC/IGQ, dated 18 Oct 01. W/D
   Exhibit F.  Letter, AFPC/DPPPE, dated 21 Jul 03.
   Exhibit G.  Letter, AFPC/DPPPWB, dated 22 Jul 03.
   Exhibit H.  Letter, SAF/MRBR, dated 15 Aug 03.
   Exhibit I.  Applicant Response, dated 18 Jan 04, w/atchs.
   Exhibit J.  Minority Report, dated 1 Jul 04.
   Exhibit K.  Transcript of Proceedings, dated 19 May 04.

								

AFBCMR BC-2003-02009
MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)
SUBJECT:	AFBCMR Application of XXXXXXX, XXXXXXX
I have carefully reviewed all aspects of this case and do not agree with the opinion of the majority of the panel that the applicant’s request that the Enlisted Performance Report (EPR) rendered for the period 26 July 2000 through 4 December 2000 be removed from his record and he receive supplemental promotion consideration to Chief Master Sergeant should be denied.
I have thoroughly reviewed the applicant’s available record, his submission, and the minority report.  And, after consideration of all the circumstances of this case I agree with the minority member of the panel and believe the relief requested should be granted.
Accordingly, it is my decision that the contested EPR be declared void and he be provided supplemental promotion consideration to Chief Master Sergeant.

AFBCMR BC-2003-02009

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 XXXXXXX, XXXXXXX, be corrected to show that the Enlisted Performance Report, AF Form 911, rendered for the period 26 July 2000 through 4 December 2000, be, and hereby is, declared void and removed from her records.

	It is further directed that the applicant be provided supplemental consideration for promotion to the grade of Chief Master Sergeant for all appropriate cycles beginning with cycle 01E9.

		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 applicant, 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 qualification for the promotion.

	

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR 
                                        CORRECTION OF MILITARY RECORDS

Subject:  Minority Report - APPLICANT

The majority of the panel recommends denial of the applicant's request that the Enlisted Performance Report (EPR) rendered for the 26 July 2000 through 4 December 2000 be removed from his record because it was an inaccurate assessment of his military service. I disagree with the Board majority and believe that the evidence presented is sufficient to show the applicant has been the victim of an injustice. I believe the EPR should be removed and he should be granted supplemental promotion consideration to Chief Master Sergeant (E-9).

The evidence of record shows that the applicant, after having used other appropriate avenues and being open and above board in his action, filed an IG complaint. Prior to the contested report, the applicant's career record as a senior noncommissioned officer had been outstanding. The information provided by the applicant and others indicates that actions taken - and not taken - by individuals in leadership position in the organization created an atmosphere of confusion as to appropriate behavior and a perception of favoritism to others in the unit.

I am persuaded by the strong statements of support by senior officials in the applicant's direct management chain willing to attest to the character and integrity of the applicant to include the Deputy Logistics Group Commander and the Chief Enlisted Manager for the Logistic Group. Also convincing to me was the statement from the area defense counsel (ADC) that represented him during the period in question. The ADC asserted the applicant's unit leadership wanted him to take action to improve the unit's performance. As a result of following this direction, he was faced with a Military Equal Opportunity complaint by a female worker that was unsubstantiated after investigation. He was then removed from his position and given a lackluster EPR. The ADC also provides support concerning the negative atmosphere of the organization. These statements support the conclusion that the contested EPR is not an accurate assessment of the applicant's performance and that the rater's ability to assess his performance was biased due to the filing of the complaint.

Furthermore, I am aware of a previous case approved by the Board, for an officer assigned to the same Logistics Group during the same period. This case described very similar events, involving the same individuals in leadership positions and used the same witnesses to support removing an officer performance report (OPR) from his records. This indicates to me that there was a pattern or sequence of events that would support the claim of injustice. I believe enlisted members deserve the same remedies as officers.

Therefore, in an effort to remove any possibility of an injustice to the applicant, I believe that the contested report should be declared void and removed from record and he should receive supplemental promotion consideration to the grade of Chief Master Sergeant.

	If  necessary, APPLICANT should be offered the opportunity to return to active duty