RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04430 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His AF Forms 910, Enlisted Performance Report (AB thru TSgt) rendered for the periods 7 Mar 08 through 6 Mar 09 (administratively corrected) and 7 Mar 09 through 6 Mar 10 be removed from his records. 2. He receive supplemental consideration for promotion to the grade of to Staff Sergeant (SSgt). _________________________________________________________________ APPLICANT CONTENDS THAT: He received an Article 15 for falling asleep on duty. He believes he should not have received the Article due to him being diagnosed with Obstructive Sleep Apnea during the period in question. The Article 15 and the contested performance reports prevented him from testing for promotion for two cycles. His commander eventually set aside the Article 15 in its entirety. In support of his appeal, the applicant provides copies of documents extracted from his military personnel records. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 Jun 05, the applicant contracted his enlistment in the Regular Air Force. On 25 Jul 08, the applicant received an Article 15 for sleeping on post on or about 1 May 08. His punishment consisted of a reprimand, 30 days of extra duty, and reduction in grade to Airman First Class with a new date of rank of 25 Jul 08. By a letter dated 7 Jan 09, the applicant’s Otolaryngologist indicated the applicant had been under her care for chronic sinusitis and obstructive sleep apnea since 3 Sep 08. The applicant’s EPR profile is listed below: PERIOD ENDING OVERALL EVALUATION 6 Mar 07 5 6 Mar 08 5 * **6 Mar 09 3 *6 Mar 10 3 *Contested Reports **Referral Report On 12 Nov 10, the applicant’s commander set aside the 25 Jul 08 nonjudicial punishment in its entirety. The applicant did not file an appeal with the Evaluation Report Appeals Board (ERAB). However, the ERAB reviewed the application and approved voiding the 6 Mar 09 performance report; however, the ERAB denied removal of the 6 Mar 10 performance report as they were not convinced it was inaccurate or unjust. On 23 Jan 11, the applicant was relieved from active duty and placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating on 24 Jan 11. He served 5 years, 7 months, and 17 days of active service. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request to remove the 2010 performance report. The applicant received the Article 15 in 2008 and the 2009 report was removed from his records, but the 2010 report was rendered under the supervision of new evaluators. This performance report is not a referral report; it is an average evaluation with no negative comments or ratings. DPSID notes the commander which set aside the nonjudicial punishment is not the same commander which had oversight of the contested report. Furthermore, no evidence was provided to support the contention that the 6 Mar 10 performance report was the result of the Article 15. The applicant has not provided any statements from the evaluator who signed the report indicating that it was influenced by the nonjudicial punishment. Without support from the evaluators who signed the report, it must be assumed the report in question is an accurate assessment of the applicant’s performance during the period in question. The complete AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOE states the applicant was provided supplemental consideration for promotion to the grade of SSgt by the 09E5 and 10E5 cycles, but was nonselected for both cycles. However, if the Board directs removal of the 2010 performance report he will be entitled to supplemental consideration for promotion to the grade of SSgt beginning with cycle 10E5. The complete AFPC/DPSOE evaluation, with attachments, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He did not appeal the report in question through the ERAB because he was told the AFBCMR was the only way to correct the report. As for the assertion that his 2010 report was not the result of the Article 15, the applicant indicates he received the contested rating because he was not allowed to carry a firearm because of the Article 15. As a result, his former supervisor told him that he would not rate him higher than a three because he was not fully performing his duties. His former supervisor does not want to get involved in the situation. Also, as a result of receiving the Article 15 and undergoing an MEB he missed the opportunity for promotion by the 09E5, 10E5, and 11E5 promotion testing cycles. The commander who set aside the Article 15 is the current commander of his former supervisor and is in a prime position to evaluate whether the EPR was warranted. The applicant’s complete response, with attachments, is at Exhibit F. _________________________________________________________________ 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 error or injustice. After a thorough review of the facts and circumstances of this case, we believe sufficient doubt has been raised regarding equity of the contested EPR. Although AFPC/DPSID indicates the contested report was not the result of the Article 15 action, we believe the applicant has raised sufficient doubt the rating was not at least indirectly attributable to the Article 15 which was ultimately removed from the applicant’s records. Therefore, we believe any doubt should be resolved in favor of the applicant. Accordingly, we recommend his records be corrected to the extent set forth below. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the AF Form 910, Enlisted Performance Report (AB thru TSGT), rendered for the period 7 March 2009 through 6 March 2010 be declared void and removed from his records. It is further recommended that he be provided supplemental consideration for promotion to the grade of staff sergeant (E-5) for all appropriate cycles beginning with cycle 10E5. 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. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04430 in Executive Session on 7 Sep 11, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 Nov 10, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 25 Feb 11. Exhibit D. Letter, AFPC/DPSOE, dated 28 Mar 11, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 15 Apr 11. Exhibit F. Letter, Applicant, dated 20 Apr 11.