RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03800 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her Enlisted Performance Report (EPR) with the close-out date of 31 March 2012 be removed from her records. ________________________________________________________________ APPLICANT CONTENDS THAT: She was served a Letter of Counseling (LOC) that was not properly written. The LOC was placed in her personnel information file against her rights. She was served another LOC for not completing her upgrade training in a timely manner; however, this was false. She completed all required tasks and passed her end of course test. She was marked as “does not meet” in section III, Block 1 of the EPR. However, she was signed-off and attained her 7-level in a timely manner. She received her mid-term feedback a month and two weeks before the close-out of the EPR and was deployed at that time. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Air Force who served from 4 January 2001 through 19 November 2012. She received a Letter of counseling on 6 May 2011 for lack of initiative and motivation regarding her duties. On 28 August 2011, she received a Letter of Counseling for failing her fitness assessment for the second time in less than two years. On 26 September 2011, she received a Letter of Reprimand (LOR) for dereliction of duty. On 21 October 2011, a Memorandum for Record (MFR) was generated to record the applicant’s failure to appear for mandatory physical training (PT). On 6 April 2012, the applicant was notified of her supervisor’s intent to refer her EPR due to the “does not meet” in section III, block 1 and a derogatory comment in section III, block 6. The applicant responded to the referral EPR on 16 April 2012. The commander concurred with the referral EPR on 19 April 2012. The following is a resume of her EPR ratings: RATING PERIOD PROMOTION RECOMMENDATION *31 Mar 12 3 31 Mar 11 4 31 Mar 10 (SSgt) 4 31 Mar 09 5 31 Mar 08 5 9 Apr 07 4 9 Apr 06 3 9 Apr 05 5 9 Apr 04 (SrA) 4 4 Sep 02 (A1C) 5 * Contested Report ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends the LOC dated 6 May 2011 be removed from her records. AFI 36-2907, Unfavorable Information File, states that commanders, supervisors and other persons in authority can issue administrative counseling, admonitions and reprimands. These actions are intended to improve, correct and instruct subordinates whose actions degrade the individuals and the units mission. Raters must consider making comments on performance reports when the ratee receives any adverse actions. It further states if administering written counseling, admonitions or reprimands, the letter should state what the member did or failed to do, citing specific incidents and the dates; what improvement is expected; that further deviation may result in more severe action; and the individual has 3 duty days to submit rebuttal documents for consideration by the initiator. All supporting documentation received from the individual becomes part of the record of counseling, admonishment or reprimand. The initiator will then have 3 duty days to advise the individual of their final decision regarding any comments submitted by the individual. The initiator of the 6 May 2011 LOC was within their authority to administer the LOC; however, they failed to administer the LOC as prescribed within the AFI by not allowing the applicant 3 duty days to submit rebuttal documents for consideration. The complete DPSIM evaluation is at Exhibit C. AFPC/DPSID recommends denial. The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB). The applicant contends that the contested referral EPR was unjust based on an LOC comment. She asserts the LOC was not written properly and was placed in her personnel information file. The applicant provided copies of two LOCs, one MFR and one LOR that she received during the contested reporting period. AFPC/DPSIM has opined the LOC dated 6 May 2011 was not processed in accordance with AFI 36-2907. The 6 May 2011 LOC states the applicant received an additional LOC on 15 February 2011 for security clearance paperwork and 23 February 2011 for upgrade training infractions. However, the 15 and 23 February 2011 LOCs are irrelevant to this application as the dates are not within the contested rating period. Thus the comment on the contested EPR stating the applicant “received 1 MFR/1 LOC/ 1 LOR by flight leadership” states exactly what happened. It is safe to affirm that the EPR referenced the 21 October 2011 MFR, the 28 August 2011 LOC, and the LOR dated 26 September 2011 as they were all procedurally correct and in accordance with Air Force policy and instructions. Therefore, the referral comment on the contested EPR was appropriately mentioned. The applicant also contends she did not receive her midterm feedback until a month and two weeks before the close-out of her EPR. Although she received her midterm a month and a half prior to close-out of the EPR, she received several counseling’s throughout the rating period. Counseling in itself is a form of feedback. Additionally, the applicant signed the EPR acknowledging that feedback was accomplished during the reporting period. While documented feedback sessions are required, they do not replace informal day-to-day feedback. A rater’s failure to conduct a required or requested feedback or failure to document the feedback on a Performance Feedback Worksheet does not invalidate a report. In this case, the applicant provided an AF Form 931, documenting in writing that she did not meet standards in the primary/additional duties block; it may have been untimely, however, she was afforded the opportunity to improve and progress until the report close-out or address any issues related to the reason for not meeting standards. Consequently, this aspect of the applicant’s appeal is without merit. If the applicant believes she was the victim of an unfair report and the report negatively affected future promotion/career opportunities, she should have initiated an Inspector General or Military Equal Opportunity and Treatment complaint. There is no evidence that she pursued any of these actions. The final review of the contested EPR was accomplished by the additional rater and a subsequent review by the commander as a final “check and balance” in order to ensure the report was given fair consideration in accordance with the established intent of the Officer and Enlisted Evaluation system. In absence of evidence of an unfair or biased report based on its content, the final rating was given fairly and in accordance with Air Force policies and procedures. The most effective evidence to rebut an evaluation consists of statements from the evaluators who signed the report or from other individuals in the rating chain when the report was signed. Without the benefit of these statements, it can only be assumed that the EPR is accurate as written. Such evidence from the rating chain could have shed light on these matters, as such, there was no justification submitted to justify removal of this report from her permanent evaluation record. The applicant failed to provide any information or support from the rating chain of record on the contested report. Additionally, other than her personal opinions and unsupported allegations, she has provided no valid basis to support the removal of the contested EPR. Air Force policy dictates an evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Only strong evidence warrants correction or removal of a performance report from an individual’s record. The burden of proof is on the applicant. She has not substantiated the contested report was not rendered in good faith by all evaluators based on the knowledge available at the time. The applicant has not provided evidence that the report is inaccurate or unjust as written. The complete DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 3 May 2013 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. ________________________________________________________________ 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 actionable error or injustice. The applicant's complete submission was thoroughly reviewed and her contentions were duly noted. However, we do not find the applicant’s assertions and the documentation presented in support of her appeal sufficiently persuasive to override the rationale provided by AFPC/DPSID. Therefore, we agree with their opinion and recommendation and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Additionally, we note AFPC/DPSIM’s recommendation to remove the 6 May 2011 Letter of Counseling (LOC) from the applicant’s record. While we agree the LOC was improperly written, once the applicant separated from the Air Force, that record was destroyed and is not maintained in her master personnel file. Therefore, no further action with respect to the LOC is available. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The applicant be notified that the evidence presented did not demonstrate the existence of actionable 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-2012-03800 in Executive Session on 6 June 2013 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Aug 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 19 Apr 13. Exhibit D. Letter, AFPC/DPSID, dated 22 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 3 May 13.