RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2003-03771
						INDEX CODE:  111.02
  XXXXXXXXXXXXXXXXXX			COUNSEL:  NONE

  XXXXXXXXXXXX				HEARING DESIRED:  NO
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APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) rendered for the period of 3 June 1999 through 30 January 2000 be removed from his records and he receive supplemental promotion consideration.

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APPLICANT CONTENDS THAT:

His performance report closing 30 January 2000 should be removed from his records due to conflicts and irregularities concerning his duty performance.  

In support of his request, the applicant submits a personal statement; a copy of his EPR closing 30 January 2000; a copy of his gaining commander’s Memo for Record to set aside the Article 15 punishment; copies of his performance feedback worksheets dated 30 August 1999 and 3 January 2000; a copy of his Air Force Achievement Medal certificate; character references; a copy of his Unfavorable Information File (UIF) removal letter; a copy of his credit union statement for July 1999; the Evaluation Reports Appeal Board (ERAB) denial letters dated 4 April 2003 and 17 September 2003; a copy of an e-mail from the NCOIC of Military Justice concerning this removal of his Article 15 with attachment; a copy of his Application for Command Sponsorship; copies of correspondence from his government credit card company; and a copy of his Article 15 dated 22 February 2000.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The Military Personnel Database (MilPDS) indicates the applicant has a Total Active Federal Military Service Date of 11 June 1993.  He has continually served on active duty and has been progressively promoted to the grade of staff sergeant (E-5), with a date of rank of 1 May 1999.  

On 22 February 2000, the applicant received Article 15 punishment for misuse of a government credit card.  His punishment consisted of a reduction to the grade of senior airman.  The applicant received a referral EPR for the period 3 June 1999 through 30 January 2000.  On 18 July 2001, the applicant’s gaining commander found the Article 15 punishment was disproportionate to the gravity of the charged offense and initiated action to set aside the nonjudicial punishment having made the determination that unusual circumstances existed.  On 4 April 2003 and 17 September 2003, the Evaluation Reports Appeal Board (ERAB) considered and denied the applicant’s requests to have his referral EPR removed from his records.  Copies of the ERAB’s decision are included with Exhibit A.

The following is a resume of the applicant’s EPR profile:

	PERIOD ENDING		PROMOTION RECOMMENDATION

    01 Aug 96				5
    10 Feb 96				5
    02 Jan 97				4
    02 Jun 98				5
    02 Jun 99				5
    30 Jan 00*				3
    21 Oct 00				5
    21 Oct 01				5
    21 Oct 02				5
    21 Oct 03				5

* Contested report 

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AIR FORCE EVALUATION:

AFPC/DPPPEP strongly recommends denial of the applicant’s request to void his EPR closing on 30 January 2000.  It is DPPPEP’s opinion that the applicant did not provide any evidence or documentation supporting his contention that the EPR in question was not fair or and accurate assessment.  The applicant indicates that since his Article 15 punishment was set aside, he was not in violation of the policies governing the use of his government travel card.  DPPPEP states that setting aside his punishment does not negate the accuracy of his evaluation.  The ERAB denied both of the applicant’s appeals stating that even though a portion of his Article 15 punishment was set aside, the Article 15 itself was not set aside.  In addition, he failed to provide documentation to convince the ERAB that the misuse of his government credit card did not occur.  The comments in his contested EPR are based on the misuse of his government travel card along with other comments regarding his duty performance.  The report does not even mention the Article 15.  The applicant claims that the other referral comments in his EPR were never identified to him during his performance feedback sessions.  While current Air Force policy requires performance feedback for personnel, a direct correlation between information provided during feedback sessions and the assessments on evaluation reports does not necessarily exist.  If the member’s rating chain determined an inaccuracy had occurred in the evaluation after mitigating the punishment, support would have been provided to void/change the EPR, which has not occurred.  The AFPC/DPPPEP evaluation is at Exhibit C.

AFPC/DPPPWB defers to DPPPEP’s recommendation.  DPPPWB states the first time the applicant’s contested report was used in the promotion process was cycle 01E6 to technical sergeant (TSgt).  The applicant’s total score was 249.73 and the score required for selection in his Air Force Specialty Code (AFSC) was 310.02.  He was also considered and non-selected for promotion to TSgt during cycles 02E6 and 03E6.  Should the Board decide to remove the contested report, the applicant would be entitled to supplemental board consideration beginning with cycle 01E6.  His total score would not increase sufficiently enough to make him a select for cycles 01E6 or 02E6.  However, he would become a select for cycle 03E6, pending favorable data verification and the recommendation of his commander.  The AFPC/DPPPWB evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

According to AFI 51-202, paragraph 5.7.2, “Setting aside a punishment in its entirety restores the member to the position held before imposition of the punishment, as if the Article 15 action had never been initiated.”  The direct correlation between the performance feedback worksheet (PFW) and enlisted performance report (EPR) is established by Air Force Instruction 36-2406, Enlisted Evaluation System, paragraph 2.1, which states the purpose of the PFW is “a private, formal communication a rater uses to tell a ratee what is expected regarding the duty performance and how well the ratee is meeting those expectations.”  The seven areas of the PFW are the same expectations listed on the EPR.  This process was created and made mandatory so members would understand the evaluation standard being used by their supervisor as a precursor to the EPR.  

The subsequent evidence provided by Bank of America shows the merchant failed to provide evidence showing he made a purchase at Ikea.  He has accepted responsibility for the mitigating circumstances of using his government credit card to purchase ferry tickets to move his command-sponsored spouse.  However, he does not believe the Article 15 would have been administered for these charges alone, but stems from the unproven allegations of misuse.  Therefore, he requests that his EPR closing 30 January 2000 be removed from his record.  The applicant rebuttal 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  After a thorough review of the evidence of record, we are persuaded that the contested report is not a fair and accurate reflection of the applicant’s performance during the period in question.  We note the gaining commander’s contentions of correcting, in his opinion, a clear injustice when he chose to set-aside the applicant’s Article 15 punishment.  Contrary to the Air Force Office of Primary Responsibility’s advisory, the AFPC Legal Office agrees with the applicant’s assertion by citing AFI 51-202, paragraph 5.7.2; when the commander set-aside the applicant’s Article 15 punishment in it’s entirety, he also essentially set aside the Article 15 itself as if it had never been initiated.  Based on this evidence, the Board feels that the same leniency shown the applicant for correcting the circumstances surrounding his Article 15 set-aside should also be applied to the applicant’s performance rating for the evaluation period in question.  It is the Board’s opinion that the rating the applicant received in the contested EPR is disproportionate to the circumstances of the charged offense in comparison to his normal exceptional performance and accomplishments.  In view of the foregoing, and in an effort to offset any possibility of an injustice, we believe the records should be corrected in favor of the applicant.  Therefore, we recommend the EPR be declared void and removed from his records.  

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THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the Enlisted Performance Report, AF Form 910, rendered for the period 3 June 1999 through 30 January 2000 be, and hereby is, declared void and removed from his records.

It is further directed that he be provided supplemental consideration for promotion to the grade of technical sergeant (E-6) for all appropriate cycles beginning with cycle 01E6.

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 application, that would have rendered the individual ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual’s qualification for the promotion.

If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.

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The following members of the Board considered this application in Executive Session on 11 March 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence for AFBCMR Docket Number BC-2003-03771 was considered:

	Exhibit A.  DD Form 149, dated 5 Nov 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/ DPPPEP, dated 7 Jan 04. 
	Exhibit D.  Letter, AFPC/ DPPPWB, dated 9 Jan 04. 
	Exhibit E.  Letter, SAF/MRBR, dated 6 Ferb 04. 
	Exhibit F.  Applicant’s Rebuttal, dated 27 Feb 04. 

									

AFBCMR BC-2003-03771

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 XXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that the Enlisted Performance Report, AF Form 910, rendered for the period 3 June 1999 through 30 January 2000 be, and hereby is, declared void and removed from his records.

	It is further directed that he be provided supplemental consideration for promotion to the grade of technical sergeant (E-6) for all appropriate cycles beginning with cycle 01E6.

	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 application, that would have rendered the individual ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual’s qualification for the promotion.

	If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that he was promoted to the higher grade on the date of rank established by the supplemental promotion and that he is entitled to all pay, allowances, and benefits of such grade as of that date.