RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-03247
				INDEX CODE 111.02  111.05
	 			COUNSEL:  None

				HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) for the period 28 Apr 01 through 25 Mar 02 be declared void and removed from his records [administratively accomplished]; his duty title be corrected to reflect “NCOIC, Evaluation Procedures Section,” rather than “Assistant NCOIC,” effective 1 May 01; and he be afforded supplemental promotion consideration to technical sergeant (TSgt) for cycle 04E6.

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APPLICANT CONTENDS THAT:

The applicant warns there is a conflict of interest because he works in the HQ AFPC office that will render the advisory the Board will review.  He has written advisories for over three years for evaluation appeals and has clearly substantiated rating chain bias. During this entire reporting period [18 Apr 01 - 25 Mar 02] he never once received a Letter of Counseling (LOC), Letter of Reprimand (LOR), Article 15 or any other form of derogatory counseling. He was awarded the “NCOIC, Eval Procedures Section” duty title on 31 May 00. His coworkers hold the title of “NCOIC” and one held that title while still a SSgt. He finds it very odd that a copy of the Report of Investigation (ROI) of his complaint cannot be found. It is apparent to him that the ROI and/or the resultant HQ AFPC/JA advisory are purposely being denied to him as they contain substantiated documentation that the rating chain was biased. He requests the AFBCMR direct AFPC/JA provide a copy of their advisory to uncover a higher level of rating chain bias. 

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

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STATEMENT OF FACTS:

The applicant is currently serving in the grade of staff sergeant (SSgt) and is assigned to HQ AFPC at Randolph AFB. 

In the EPR for the period 18 Apr 00 through 17 Apr 01, the applicant’s duty title was “NCOIC, Evaluation Procedures Section.” 

Around 22 Apr 02, the contested report was referred to the applicant. His duty title on this report was “Assistant NCOIC, Performance Evaluation Section.”  The applicant’s on/off duty conduct was marked unacceptable in Section III and the overall rating was 3. The rater commented that the applicant’s performance was inconsistent in timeliness of work, he required assistance from coworkers to complete some of his cases, intervention was required to resolve an off-base dispute, and he improperly managed his finances by not following a financial plan and purchasing items he could not afford.

On 28 May 02, the applicant filed an IG complaint against the rater for assigning the majority of additional duties to him, causing him to be unable to complete work at the same rate as his coworkers and thereby provoking hostility among them; inappropriately giving him the title of “Assistant NCOIC;” chastising him in front of coworkers; and inappropriately initiating a referral report based on his having filed for bankruptcy and on unproven allegations of physical/sexual abuse against and nonsupport of his wife. 

On 13 Jun 02, the 25 May 02 referral report was reaccomplished so that it was no longer a referral report. The overall rating was still a 3. The rater’s comments now reported that off-duty personal problems caused a drop in the applicant’s actual job performance but that he had shown recent signs of positive improvement and had stayed on track with his workload with increased attention to timeliness. The additional rater suggested the applicant continue to be closely mentored.

On 20 Jun 02, HQ AFPC/IG advised the applicant that a commander-directed investigation (CDI), rather than an IG investigation, would be conducted. On 21 Jun 02, the AFPC/CC appointed an investigation officer (IO).

On 26 Jul 02, AFPC/JA provided the AFPC commander a written review, essentially finding the CDI legally sufficient. The legal opinion indicated that since the EPR had been altered to no longer be a referral report, no command corrective action was required. 

On 12 Dec 02, an EPR closing 24 Nov 02 was referred to the applicant. His duty title on this report was “Assistant NCOIC, Performance Evaluation Section.”  Three of the performance factors in Section III reported that he failed to meet minimum standards, had unacceptable on/off duty conduct and was an ineffective supervisor/leader. The overall rating was 2 and the applicant was not recommended for promotion. The rater commented that two off-duty incidents marred an otherwise excellent performance. The applicant received two LORs, one for an “unprofessional relationship” and another for being apprehended while driving drunk and subsequently failing to report. The additional rater reported that comments were requested but not received from the applicant within the required period. He added that the applicant’s otherwise excellent performance on the job had been overshadowed by his off-duty decision-making. The additional rater signed the report on 6 Jan 03.

The applicant’s requests under the Freedom of Information Act (FOIA) for copies of the ROI and the resultant AFPC/JA advisory were denied in May and Jun 03 because the ROI could not be found and the advisory was not releasable.  

On 20 Jun 03, the IO advised the applicant he could not remember which allegations were substantiated and which were not.

On 1 Jul 03, the AFPC squadron section advised the applicant that the IO found the preponderance of the evidence substantiated two of the seven allegations he made in his complaint. Both of these allegations (the rater’s inappropriate use of bankruptcy filing and an unproven allegation of spousal abuse) related to the 25 Mar 02 EPR and both had previously been corrected by the revision of the EPR from a referral to a non-referral report.

On 18 Sep 03, the applicant filed this AFBCMR appeal.

In a 2 Oct 03 memo, SAF/MRBR requested that, given the potential conflict of interest, HQ AFPC/DPPP consider conducting an independent Evaluation Reports Appeal Board (ERAB) as a forum to consider the requested change to the 25 Mar 02 EPR. If the independent ERAB review did not result in the requested relief, then SAF/MRBR directed an advisory from an external agency.

On 16 Oct 03, the ERAB approved the applicant’s request to void the EPR closing 25 Mar 02. As a result, HQ AFPC/DPPP directed the XX MSS/DPMPE to replace the report with the provided AF Form 77, Supplemental Evaluation Sheet, which indicated the applicant was not rated for the period 18 Apr 01 through 25 Mar 02.

The applicant’s performance report profile since 1993 reflects the following:

		PERIOD ENDING	OVERALL EVALUATION
			 1 Mar 93			5
			28 Nov 93			5
			28 Nov 94			5
			28 Nov 95			5
			30 Jun 96			5
			 1 Jan 97			5
			 1 Jan 98			5
			 1 Jan 99			5
			24 Oct 99			5
			17 Apr 00			5
			17 Apr 01			4
			25 Mar 02			3 (Contested - Voided on
						     16 Oct 03 & replaced
						     with AF Form 77)
			24 Nov 02			2 (Referral)
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AIR FORCE EVALUATION:

HQ AFPC/DPPP advised that on 1 Jan 01 three separate sections (AFBCMR Advisory Section, Evaluation Reports Appeal Section, and Evaluations Procedures Section) merged into one section (Performance Evaluations Section). With this reorganization, the section chief was faced with several NCOs, TSgts and the applicant, with an “NCOIC” duty title. The long-term solution was to keep the TSgts’ duty titles as NCOIC until they departed and, since the TSgts outranked the applicant, to change his duty title to Assistant NCOIC. Since that time, the section chief has continued with this philosophy (new SSgts have a duty title of Evaluation Procedures and Appeals Analyst). Therefore, the applicant’s request for a duty title change should be denied. Since the 25 Mar 02 EPR will have been removed from the applicant’s records, the record is not eligible for a supplemental look. The final decision on his duty title will not impact promotion to TSgt. The applicant is also ineligible for supplemental promotion consideration for the 03E6 cycle because of a commander-directed referral EPR for the period 26 Mar 02 through 24 Nov 02, which was rendered prior to the promotion eligibility cutoff date (PECD) for cycle 03E6.

A complete copy of the evaluation, with attachments, is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 24 Oct 03 for review and comment within 30 days.  As of this date, this office has received no response.
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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 error or injustice to warrant partial relief. The EPR closing 25 Mar 02 was administratively voided from the applicant’s records. The applicant is not eligible for supplemental promotion consideration for the 03E6 cycle because he received a referral EPR on 24 Nov 02 before the PECD for that cycle. He also does not require supplemental promotion consideration for the 04E6 cycle as the EPR contested in the instant case has been administratively voided and, according to HQ AFPC/DPPP, will be removed from his records by the time he meets that cycle. Therefore, the only issue remaining for this Board’s consideration is the duty title. The applicant contended in his rebuttal to the original referral 25 Mar 02 EPR that a SSgt in his center was given the duty title of NCOIC and that his rater singled him out with an unequal duty title for doing the same job as the other enlisted members. We note the advisory opinion states that three separate sections were merged into one section on 1 Jan 01 and the decision was for the TSgts to keep duty titles as NCOIC until they departed and to change the applicant’s title to Assistant NCOIC. However, we note the EPR covering the period 18 Apr 00 through 17 Apr 01 still reflected the NCOIC duty title, which was after the reorganization. While the CDI report is apparently no longer in existence, the 26 Jul 02 HQ AFPC/JA advisory, which cannot be released to the applicant, was reviewed by this Board and substantiated the rater’s improper judgment regarding the contested report. We are concerned that some of the management practices may be tainted and, in order to offset the possibility of an injustice, believe that any doubt regarding this remaining issue should be resolved in the applicant’s favor. We therefore recommend his duty title be changed to “NCOIC, Evaluation Procedures Section.”  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his duty title is “NCOIC, Evaluation Procedures Section,” rather than “Assistant NCOIC,” effective 1 May 2001.

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The following members of the Board considered this application in Executive Session on 11 December 2003 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.   The following documentary evidence relating to AFBCMR Docket Number BC-2003-03247 was considered:

   Exhibit A.  DD Form 149, dated 18 Sep 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPP, dated 17 Oct 03, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 24 Oct 03.

                                   

AFBCMR BC-2003-03247

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 his duty title is “NCOIC, Evaluation Procedures Section,” rather than “Assistant NCOIC,” effective 1 May 2001.