RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  04-01789
		INDEX CODE:  111.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Enlisted Performance Report (EPR) for the period 2 April 2001 through 1 April 2002 be declared void and removed from his record and a reaccomplished EPR be filed in its place.  
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APPLICANT CONTENDS THAT:

His immediate supervisor told him that he was going to receive a 5 rating.  The commander at that time did not feel he deserved that rating.  Since then, he has explained his case and now all the original raters have agreed to upgrade his EPR to a 5 rating.  He has used the evaluation process at AFPC but they have twice denied his request.  Approval of this request will not gain him anything, but peace of mind knowing that the administrative process does work for an enlisted member who wasn't dealt a fair hand.  Promotion is not a factor since he was promoted to technical sergeant (E-6) in June 2003.  He made rank nearly five years ahead of the normal promotion time because he takes his job and the Air Force seriously and he loves his job with a passion.

In support of his request applicant submits a personal statement; a copy of his application to the Evaluation Reports Appeal Board (ERAB); supporting emails from the rater and former commander; copy of contested EPR (2 April 2001 - 1 April 2002); a copy of the reaccomplished EPR; copies of his performance feedback worksheet for the periods 30 August 2001 and 11 February 2002; and, copies of his EPRs for the periods ending 1 April 2003 and 1 April 2004.  

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

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STATEMENT OF FACTS:

The Military Personnel Data System (MilPDS) indicates applicant reenlisted in the Regular Air Force on 6 June 2003 for a period of six years.  He has been progressively promoted to the grade of technical sergeant (E-6), effective and with a date of rank 1 July 2004.  

A similar appeal by the applicant was considered and denied by the ERAB.  The following is a resume of his EPR profile:

	PERIOD ENDING		PROMOTION RECOMMENDATION

    01 Apr 00				5 
    01 Apr 01				5 
    01 Apr 02				4 (contested report)
    01 Apr 03				5
    01 Apr 04				5

On 17 April 2002, the applicant’s commander imposed nonjudicial punishment on the applicant for violation of Article 95, for resisting arrest on or about 10 March 2002.  The punishment consisted of a reduction in grade to senior airman, suspended until 14 May 2002 when, unless sooner vacated, it would be remitted without further action, forfeiture of $876.00 pay and 30 days of restriction to Osan Air Base, Republic of Korea.  On 23 April 2002, after considering the applicant’s appeal, the commander modified the punishment of forfeiture of pay to $438.00 and restriction to base to 23 days.  The foregoing proceedings were reviewed and found legally sufficient by the Assistant Staff Judge Advocate on 24 April 2002.   

The remaining relevant facts pertaining to his previous application to the Board requesting that his nonjudicial punishment under Article 15 be removed from his records are contained in the Record of Proceedings at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPPPE recommends the application be denied.  DPPPE states that the applicant had an off duty incident/altercation with a member of the security forces during the contested rating period.  DPPPE is not clear why the applicant believes that the incident should not have been considered by the evaluators when rendering the contested report.  The supporting statements all acknowledge the incident took place and their support months after the fact are merely retrospective reviews.  DPPPE states that although the applicant may feel that his evaluators have overstressed an isolated incident, or short period of substandard performance or conduct, the evaluators are obliged to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential.  DPPPE notes that the commander who administered the Article 15 has not been heard from, apparently the Article 15 was not set-aside and that unit commander does not support action to correct the performance report.  The AFPC/DPPPE evaluation is at Exhibit C.

AFPC/DPPPW states that the first time the contested report was used in the promotion process was cycle 03E6 to TSgt.  The applicant was promoted during that cycle and will pin on 1 July 2004.  The next time the contested report will be used in the promotion process will be cycle 06E7 to MSgt.  DPPPW states that substantial evidence is required to prove the report is erroneous or unjust based on its content.  Retrospective views of evaluators should not be viewed favorably.  The AFPC/DPPPW evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that his MPF Commander and Superintendent pleaded with the commander that an Article 15 was an unnecessary use of punishment.  However, he disagreed and consequently, his EPR was downgraded.  His rating chain of command that initially wrote the EPR did not take into consideration the mitigating circumstances and new testimony from two witnesses who were present at the time of the alleged incident.  He was going to receive a perfect 5 rating across the board on the contested report, but when he received the EPR after he left Korea, it was downgraded to a 4.  

He asks the Board to give him a fair hand and consider his request with an open mind and an understanding that his raters have had a change of heart.  He takes his Air Force career seriously and was not a wild disorderly person during the contested reporting period.  The applicant’s letter 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.  Applicant contends that undue emphasis placed on an isolated incident tainted his chain of command’s perception of his performance, which resulted in an unfair rating.  His contentions are duly noted; however, we do not find the evidence provided sufficiently persuasive to override the evidence of record and the rationale provided by the Air Force.  We are not convinced by the evidence presented that the contested report was technically flawed when prepared or that the rating was based on inaccurate information.  Evaluators are required to assess a ratee’s performance, honestly and to the best of their ability, based on their observance of an individual’s performance during the rating period in question.  We have noted the rater’s statement that the commander returned 
the report for further consideration.  As a rater and the direct supervisor to the applicant, this evaluator had the right to resubmit the report with the 5 rating he alleges he assigned yet it appears he chose not to do so.  Neither the applicant nor the rater have provided evidence which would lead us to believe his decision in this regard was coerced in any way.  As to the statement by the commander, it appears that he now views the report as an overly harsh assessment of the events precipitating the ratings the applicant received.  In our estimation, his statement constitutes a retrospective judgment based on an assessment that has mellowed with the passage of time.  Therefore, we do not find his statement sufficient to warrant approval of the requested relief in the absence of some information now at the commander’s disposal to which he was not privy at the time the report was written.  Of note, too, is the fact that the additional rater has not provided supportive comments for our review.  The applicant’s good work performance is not being disputed and is reflected in the contested report; however, evaluation reports evaluate the “whole person,” to include on and off duty conduct.  Therefore, in view of the foregoing, and in the absence of evidence to the contrary, we find no 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 this application in Executive Session on 15 September 2004 under the provisions of AFI 36‑2603:

     Exhibit A.  DD Form 149, dated 25 May 04, w/atchs.
     Exhibit B.  Record of Proceedings, dated 22 May 03.
     Exhibit C.  Letter, AFPC/DPPPE/DPPPW dated 22 Jun 04.
     Exhibit D.  Letter, SAF/MRBR, dated 1 Jul 04.
     Exhibit F.  Letter, Applicant, dated 7 Jul 04.