RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-03421
							INDEX CODE:  111.02
  XXXXXXXXXXXXXXX				COUNSEL:  NONE
  							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Officer Performance Report (OPR) rendered for the period of 31 October 1996 through 30 October 1997 be voided and removed from his records.

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APPLICANT CONTENDS THAT:

His contested OPR contains statements and ratings that are unjust because his accuser, who had been someone he was dating, proved to be inconsistent in her statements and unwilling to participate in legal proceedings which led to the dismissal of the Article 32 proceedings.  

In support of his request, the applicant submits a personal statement and copies of his contested OPR, statements from his accuser, and letters of support from his rating chain.  

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 and a Total Active Federal Commissioned Service Date of 3 March 1992.  He was promoted to the grade of major, effective and with a date of rank of 1 October 2002.  

The following is a resume of his OPR ratings commencing with the report closing 30 October 1994:

	PERIOD ENDING				OVERALL EVALUATION

	30 Oct 94 (1st Lt)				  MS
	30 Oct 95 (Capt)				  MS
	30 Oct 96 					  MS
	30 Oct 97						Contested Report
	30 Oct 98						  MS
	 9 Dec 99						  MS
	13 Jun 00						  MS
	 7 May 01						  MS
	15 Apr 02						  MS
	15 Apr 03 (Major)				  MS
	15 Apr 04						  MS
	15 Apr 05						  MS
	15 Apr 06						  MS
	15 Apr 07						  MS

The applicant received a Letter of Reprimand (LOR) and Unfavorable Information File (UIF) for conduct unbecoming an officer and questionable judgment for making unwarranted sexual advances towards a female civilian.  During the course of the investigation, the accuser did not participate in the prosecution’s case and refused to show up or testify at the Article 32 proceedings.  On 15 May 1997, the accuser went to the applicant’s attorney and submitted a statement that she did not want to proceed with the case and that the whole thing was a mistake.  On 21 November 1997, the applicant was notified of a referral OPR for the period 31 October 1996 through 30 October 1997.  The report was referred due to a comment indicating the applicant received a LOR citing conduct unbecoming an officer and questionable judgment for making unwanted sexual advances toward a female civilian.  On 25 November 1997, the applicant acknowledged receipt of the notification.  

On 20 February 2004, the applicant submitted an appeal to the Evaluation Reports Appeal Board (ERAB) requesting his OPR closing 30 October 1997 be voided.  The ERAB denied the applicant’s request. 

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AIR FORCE EVALUATION:

AFPC/DPSIDEP recommends denying the applicant’s request to void his OPR closing 30 October 1997.  DPSIDEP states that although there was not enough evidence to proceed with a Court Martial, the applicant’s LOR and UIF remained.  This information was known at the time the report was written but the evaluator did not have to use it.  However, the evaluator determined, at that time, the information was warranted mentioning in the OPR.  Since the applicant received an LOR and UIF for the reasons cited, and the actions were not dismissed, the statement in the OPR is accurate as written.  In their support to remove the contested OPR, the evaluators did not indicate that they now have information that was not available when the report was rendered that substantiates the applicant was dealt an injustice.  

DPSIDEP states that for the applicant to prevail, the LOR and UIF would had to have been “set aside” (deemed never should have happened/existed).  The LOR was removed from the UIF early indicating the administrative action served its purpose, not that the action did not happen or that the offense did not occur.  Currently, the evidence only shows that there was not enough evidence to proceed to Court Martial.  

DPSIDEP states the contested report contains accurate information that was known to the evaluators at the time the report was written.  The appeal process is to correct errors or injustices and they do not find either in this case 

The DPSIDEP evaluation is at Exhibit B.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He stated his argument in his application package and is not sure what more can be said about the lack of support from his normal chain of command in resolving this issue at the time it occurred.  It is clear to him that having his leadership involved and fighting this issue would have prevented the LOR and UIF from being issued in the first place.  His Air Force leaders in subsequent assignments saw through the red tape and evaluated the situation from an unbiased perspective.  His additional rater at his next assignment understood the UIF should not have been established based on unsupported accusations and supported a request to have the UIF removed immediately.  The advisory opinion is stating that his rating chain is wrong about the contested report being an unjust evaluation.  He only asks that the Board impartially consider his application.

The applicant’s rebuttal is at Exhibit D.

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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, the Board is persuaded that the contested report, while an otherwise accurate reflection of the applicant’s performance during the period in question, should not have included the comments regarding the UIF and LOR that made it a referral report.  We are satisfied by the evidence presented that the applicant’s receipt of an LOR and corresponding UIF, following the accuser’s recanting of her charge, was unwarranted.  Our opinion is supported by the documented statement from the accuser and her unwillingness to perpetuate legal proceedings based on an admittedly false charge, as well as the statements provided on the applicant’s behalf from his former rating chain.  Therefore, based on this evidence, we feel the comments in the contested OPR concerning the LOR and corresponding UIF created an injustice.  Accordingly, we recommend the records be corrected to the extent indicated below.  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the Company Grade Officer Performance Report, AF Form 707B, rendered for the period 31 October 1996 through 30 October 1997 be declared void and removed from his records.  It is further recommended that the corrected record be considered for promotion to the grade of major by Special Selection Board for the Calendar Year 2001A (CY01A) Central Major Selection Board, and for any subsequent board for which the OPR closing 30 October 1997 was a matter of record.

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The following members of the Board considered this application in Executive Session on 29 April 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-03421:

    Exhibit A.  DD Form 149, dated 19 Oct 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSIDEP, dated 3 Dec 07.
    Exhibit C.  Letter, SAF/MRBR, dated 15 Feb 08.
    Exhibit D.  Applicant’s Rebuttal, dated 28 Mar 08.