RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2011-02471 COUNSEL: NONE XXXXXXXXXXXXXXXXX HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Officer Performance Report (OPR), rendered for the period 1 June 2009 through 29 July 2010, be voided and removed from his record _________________________________________________________________ APPLICANT CONTENDS THAT: He was issued the contested referral performance report that referenced an action that did not exist at the time the reporting period closed. He was offered non-judicial punishment on 30 July 2010 and the final action was not official until 24 August 2010. The referral report was unjust as the Article 15 action did not exist during the rating period. In support of his appeal, the applicant provides copies of his current commander’s letter of support, the contested OPR, and the Article 15 action. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the Regular Air Force in the grade of first lieutenant (O-2). He received a referral OPR for the period 1 June 2009 through 29 July 2010. In Section IV of the OPR, the applicant’s rater indicated that “Fraternization/drunk & disorderly conduct led to Art 15...” On 30 July 2010, the applicant was offered non-judicial punishment for being drunk and disorderly on or about 28 May 2010, in a public place; and, on divers occasions, between on or about 1 December 2008 and on or about 6 May 2010, knowingly fraternized with a senior airman on terms of military equality by repeatedly socializing via telephone, text messaging and social networking websites, seeking relationship advice from the airman, engaging in sexual intercourse with the airman, allowing the airman to spend the night multiple times at his quarters, sleeping in the same bed with the airman and kissing the airman, in violation of the custom of the United States Air Force that officers shall not fraternize with enlisted persons on terms of military equality. On 4 August 2010, after consulting with counsel, the applicant waived his right to a court-martial, accepted non-judicial punishment, provided a written presentation, and requested a personal appearance. After considering the presented evidence, the applicant’s commander determined the applicant had committed the alleged offenses. As a result, the applicant received punishment consisting of a reprimand. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial. DPSID states the applicant did file an appeal through the Evaluation Reports Appeal Board (ERAB); however, the ERAB was not convinced the report was unjust or inaccurate as written and denied his request. The applicant provided a letter of support from his commander; however, the commander was not one of the evaluators on the contested report; therefore, this additional documentation is not relevant nor germane to the applicant’s appeal. DPSID indicates the basis of the applicant’s Article 15 action was that he made a false official statement on 6 May 2010 to a senior officer who was investigating an allegation of fraternization on the applicant’s part. This false official statement did in fact occur within the contested rating period. As a result of this misconduct, the applicant received a referral OPR. He contends the comment in Section IV, line 6, of the referral report, which states, “Fraternization/drunk disorderly led to Art 15…” is unjust because the action did not exist at the time the reporting period closed. This comment does not state that he received an Article 15, but rather that his misconduct, namely fraternization and drunk & disorderly conduct, led to an Article 15. The rating chain chose to document this incident in accordance with Air Force Instruction 36-2406, paragraph 3.7.5, which states if an incident or event occurs between the time an annual report closes and the time it becomes a matter of record that is of such serious significance that inclusion in that report is warranted, an extension of the close-out date must be requested. This incident, although originating within the reporting period, was still pending resolution as of the close- out date of the report. The rating chain elected to seek an extension in an effort to have the Article 15 action finalized within the requested extension period. The extension of the close-out was approved; however, the outcome had still not been finalized by the final day of the extension period. However, the rater felt the incident that occurred during the original rating period was of such significance that it warranted documentation in the applicant’s OPR. It is DPSID’s opinion that the applicant has not provided compelling evidence to show that the report is unjust or inaccurate. The complete DPSID evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: As a matter of information only, the applicant provides a copy of an early removal action of his Article 15 from his Officer Selection Record. The applicant’s complete response, with attachment, is at Exhibit D. _________________________________________________________________ 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02471 in Executive Session on 6 March 2012, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered for AFBCMR Docket Number BC-2011-02471: Exhibit A. DD Form 149, dated 17 Jun 11, w/atchs. Exhibit B. Letter, AFPC/DPSID, dated 22 Aug 11. Exhibit C. Letter, SAF/MRBR, dated 16 Sep 11. Exhibit D. Letter, Applicant, not dated, w/atch. Panel Chair