ADDENDUM
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2012-05342

	`					COUNSEL:  NONE

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  His enlisted performance report (EPR) covering the period 1 Apr 05 through 30 Sep 06 be declared void and removed from his record.

2.  He be retroactively promoted to Senior Master Sergeant (SMSgt) on the 07E8 promotion board by applying his promotion board score used in the 06E8 promotion cycle.

3.  Once retroactively promoted to SMSgt on the 07E8 promotion board, he be directly promotion to the grade of Chief Master Sergeant (CMSgt) and be returned to active duty.

4.  Alternatively, he be granted the supplemental promotion opportunities to the grade of CMSgt he was unfairly denied after being promoted to SMSgt on an AFBCMR directed supplemental promotion board.  

RESUME OF THE CASE:

On 10 Sep 13, the Board considered the applicant’s request to void and remove his EPRs covering the periods 1 Apr 05 through 30 Sep 06 and 1 Oct 07 through 30 Sep 08, and to receive supplemental promotion consideration for promotion to the grade of senior master sergeant (SMSgt) for promotion cycles 06E8, 07E8, 08E8, 09E8, and 10E8.  His contentions were the cited EPRs were issued in reprisal for his making a protected communication to the Inspector General and an Article 138 complaint; the EPR covering the period 1 Apr 05 through 30 Sep 06, was not signed by the proper individual in his chain of command; and, he was unjustly denied supplemental promotion considerations due to several administrative errors in his record.  The applicant failed to provide a final IG Report of Investigation (ROI) or any other documentation from a proper investigating authority proving his reprisal allegations were substantiated.  The Board agreed with the opinions and recommendations of AFPC/DPSID and adopted their rationale as the basis for their conclusion there was insufficient evidence to demonstrate the existence of an error or injustice or reprisal concerning the applicant's EPRs.  However, based upon the Evaluation Report Appeals Board’s (ERAB’s) earlier removal of his 30 Sep 07 EPR, the Board determined he should have received supplemental promotion consideration for each promotion board which occurred subsequent to the date the removed EPR became a matter of the record.  Therefore, the Board directed the applicant receive supplemental promotion consideration for promotion cycles 08E8, 09E8, and 10E8, and denied his request for cycles 06E8 and 07E8.  For an accounting of the facts and circumstances surrounding the applicant’s request and the rationale of the decision by the Board, see the Record of Proceeding (ROP) at Exhibit H.

On 24 Feb 14, the applicant requested reconsideration of the Board’s decision to deny his request to void his EPR covering the period 1 Apr 05 through 30 Sep 06, and requested supplemental promotion consideration for promotion cycles 07E8 through 10E8 again.  The Board denied his request for reconsideration because it was a simple reiteration of the contentions from his original application, and included documents which were available to him on the date of his initial application. (Exhibit I)

On 31 Jul 14, the applicant retired in the grade of SMSgt, after serving 25 years, 8 months, and 2 days.  (Exhibit K)

On 11 Feb 16, the applicant submitted a second request for reconsideration.  He is requesting his EPR covering the period of 1 Apr 05 through 30 Sep 06 be declared void and removed from his record; he be retroactively promoted to SMSgt on the 07E8 promotion board by applying his promotion board score used in the 06E8 promotion cycle; once retroactively promoted to SMSgt, he be directly promoted to the grade of CMSgt and be returned to active duty; and, in the alternative, he be granted supplemental promotion to the grade of CMSgt which he contends he was inappropriately denied after his supplemental promotion to SMSgt.

The applicant’s complete submission, with attachments, is at Exhibit J.

AIR FORCE EVALUATION:

AFPC/DP3SP recommends denial indicating there is no evidence of an error or an injustice.  The applicant has filed numerous appeals through the ERAB.  However, the ERAB was not convinced the contested reports were inaccurate or unjust, and partially denied the applicants request for relief.  Initially, the applicant requested the 29 Jun 06 EPR be replaced; however, he did not furnish a corrected/substitute report.  Consequently, the applicant requested the 29 Jun 06 report be voided instead.  That request was disapproved based on a lack of corroborating evidence.  A year later, the applicant requested the 29 Jun 06 EPR be substituted with a 30 Sep 06 EPR.  AFI 36-2401, Officer and Enlisted Evaluation Systems, paragraph Al.5.22.1, states “reaccomplished/substitute reports must be signed by the evaluators who signed the original report.”  However, the ERAB approved the applicant's request despite the fact the two evaluations were signed by different Reviewers, and contained considerable content change in the applicant's favor.  Subsequently, the applicant filed a fourth and fifth appeal with the ERAB requesting the 30 Sep 06 EPR which the ERAB had approved to be substituted into his record, along with his 30 Sep 07 and 30 Sep 08 EPRs, all be voided from his permanent evaluation record due to an alleged unfair treatment.  Again, the ERAB was not convinced the 30 Sep 06 and the 30 Sep 08 close out EPRs were unjust or wrong and denied the applicant's request; however, the ERAB approved removal of the 30 Sep 07 close out EPR because it contained duplicate bullets that already existed in the 30 Sep 06 EPR.  (The ERAB previously approved the substitution of the 30 Sep 06 EPR not knowing at the time it contained the duplicate bullets).  In other words, upon ERAB approval of the applicant's request to place the 30 Sep 06 into his record, the applicant then requested to void the same EPR which he had requested be included.

AFI 36-2401, paragraph Al.5.9 (Alleged Discrimination or Unfair Treatment), states "Air Force members must report any form of discrimination to their supervisors or commander.  If you file a complaint late in a reporting period or after a report closes, it may appear that you complained to create doubts about the report's fairness and accuracy.  If you believe that you have been the victim of discrimination, your best evidence is an official Equal Opportunity and Treatment (EOT) investigation, reviewed and validated by appropriate officials.  As an alternative, you may use statements from officials in the rating chain or other credible sources who have firsthand knowledge of the discrimination.  You must prove that an evaluator was biased and that the bias affected the person's objectivity to the point a fair, accurate report was impossible."  The applicant did not provide an official EOT investigation finding or an IG finding to prove he was unfairly treated or discriminated against.

In regards to violations of AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 3.2.5.4., the AFI states a unit commander (CC) determines the rating chain for assigned personnel based on Air Force and ML policy.  While the applicant states his unit commander violated the AFI by making rating chain deviations solely so he could unfairly effect the applicant's promotion, it was the determination of the unit CC to have the applicant’s lieutenant work directly for him at the time, making the unit CC the proper additional rater of the report.  The Air Force does not require the designated rater to be the immediate supervisor.  To prove his contention, the applicant needed statements from both the individuals who signed the evaluation and from the individuals who believe they should have written the evaluation.  The applicant failed to submit the required statements from the individuals in his leadership chain, making it impossible to substantiate his claim.  

AFI 36-2401, paragraph Al.5.1, (Impact on Promotion or Career Opportunity), states "a report is not erroneous or unfair because the applicant believes it contributed to non-selection for promotion or may impact future promotion or career opportunities.  The Board recognizes that non-selection for promotion is, for many, a traumatic event, and the desire to overturn that non-selection is a powerful motivation to appeal.”  An applicant must prove a report is erroneous or unjust based on its content.  The applicant has not provided relevant evidence showing the report in question is erroneous or unjust based on its content.  Further, after a careful review of previous documentation provided by the member, it appears he is simply requesting the 30 Sep 06 EPR be voided based on his belief he should have received a Senior Rater endorsement.  However, Senior Rater endorsements are not mandatory, even when a member meets the minimum criteria.  The Senior Rater has full discretion when determining which reports to endorse.  The applicant's evaluation record simply did not support Senior Rater Endorsement at that time, especially when the applicant had not completed his CCAF degree.

AFI 36-2406, paragraph 3.2.1.4, states it is the rater's responsibilities to not have the ratee write or draft any portion of his or her own performance report.  What the applicant fails to realize is that he does not get to choose what accomplishments are documented.  That is the responsibility of the rating chain.   

Furthermore, the applicant claims the contested EPR was written as a weak evaluation which excluded major accomplishments.   AFI 36-2401, paragraph Al.5.2 (Ratings and comments inconsistent with prior or subsequent evaluations), states ratings are not erroneous or unjust because they are inconsistent with other ratings the applicant has received.  The applicant's rating chain simply made a determination as to what was relevant information regarding the applicant's duty performance and promotion potential during this contested rating period, and properly documented his performance on the contested EPR.

In summary, the applicant has not provided sufficient, substantiating documentation or evidence to prove the contested evaluation was rendered unfairly or unjustly.  Air Force policy states an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain's best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain-not only for support, but also for clarification/explanation.  The applicant failed to provide information from all the rating officials on the contested report.  The evaluation in question was accomplished in direct accordance with all applicable Air Force policies and procedures.  Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual's record.  

Recommend denial.  The applicant failed to substantiate the contested report was not rendered accurately and in good faith by all evaluators based on knowledge available at the time.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit L.

AFPC/DP2SPP recommends denial of the applicant’s request for a direct promotion to CMSgt or to promote him to SMSgt during the 07E8 cycle by applying his Board scores from the 06E8 Board, indicating there is no evidence of an error or an injustice, however, recommends correcting two EPRs and granting the applicant supplemental promotion consideration for promotion to CMSgt.  The applicant requested his board score received during promotion cycle 06E8 be used for the 07E8 supplemental consideration, but that would not be in accordance with policy or procedure.  In accordance with AFBCMR Directive BC-2012-05342, dated 16 Sep 13, the applicant was provided supplemental promotion consideration to SMSgt for promotion cycles 08E8, 09E8 and 10E8.  He was selected for promotion on cycle 09E8 and received a date of rank (DOR) of 1 Jul 09.  Based on this new DOR, he was eligible for supplemental promotion consideration to CMSgt beginning with cycle 11E9.  However, due to the earlier selection to SMSgt for cycle 09E8, he had two EPRs (rendered on 30 Sep 09 and 30 Sep 10) that required a correction to his rank (SMSgt versus MSgt).  The applicant never requested this change, and to this day those two reports remain inaccurate.  In order to correct these reports, the applicant needed to apply to the ERAB or the AFBCMR after he was notified of his supplemental selection.  Once the reports are corrected, the applicant will be provided supplemental promotion consideration to CMSgt beginning with cycle 11E9.  

Recommend denial of the applicant’s request for a direct promotion to the grade of CMSgt; however, recommend correcting the applicant’s rank on two of his EPRs, dated 30 Sep 09 and 30 Sep 10, and providing him supplemental promotion consideration to the grade of Chief, beginning with promotion cycle 11E9.  

A complete copy of the AFPC/DP2SPP evaluation is at Exhibit N.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

In further support of his request for reconsideration, the applicant submitted a rebuttal to the Air Force advisories in which he takes exception to a number of the advisory opinions and recommendations: 

	a.  AFPC/DP2SPP states using his cycle 06E8 Board score for an 07E8 supplement promotion Board would not be in accordance with policy or procedures, and he would receive any approved reconsideration under the supplemental Board process in accordance with AFI 36-2502 just as he has in the past, however, he contends his suggestion is compliant with AFI 36-2502, paragraph 2.9.1.  By removing his 30 Sep 06 EPR, his promotion folder records would be the exact same as his records were when evaluated by the central promotion board.  Further, although AFPC/DP2SPP states the purpose of a supplemental promotion board is, as closely as possible, to replicate the conditions which existed during the original evaluation board, everything from the Board panel to the scoring method is actually different.  Using the 06E8 scores is the only way to receive fair and equitable consideration.  Promotion board procedures were developed to give Airmen fair and equitable consideration, not for ease of administration.  He has made several requests to have his evaluations from Misawa AB, Japan removed from his record.  His EPRs from 1 Apr 05 through 30 Sep 08 were unjust, unfair and biased and has a lasting effect on his fair and equitable promotion consideration, which a supplemental promotion board could not rectify.  Finally, the changing EPR system, coupled with missing EPRs has the possibility of affecting fair and equitable consideration. 

	b.  AFPC/DP2SPP recommends changing his rank to SMSgt on two EPRs to make them ready for a CMSgt promotion Board.  He finds this recommendation “absurd and insulting.”  EPRs written for a MSgt being recommended for promotion to SMSgt are different from EPRs written for a SMSgt being recommended for promotion to CMSgt.  His EPRs did not afford him the same opportunity or a push his peers would have received for different jobs, stratification, etc. needed to get promoted to CMSgt.  

	c.  AFPC/DP2SPP (Promotions) recommended denying his request to remove his contested EPR.  He sees this as inappropriate because the promotion office should have restricted its recommendation to issue of promotion, and not EPRs.  EPR covering the period 1 Apr 05 through 30 Sep 06 should be voided because of a clear violation of AFI 36-2406, paragraph 1.7.1.1.4.  In addition, he reiterates his prior contentions supporting removal of his 30 Sep 06 EPR.  

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 injustice concerning the applicant’s request to have his EPR removed from his record, to be retroactively promoted to SMSgt on the 07E8 promotion cycle, or to receive a direct promotion to CMSgt.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of AFPC/DP3SP and AFPC/DP2SPP and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting this portion of his requested relief.

4.  However, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice concerning the applicant’s request for supplemental promotion to CMSgt.  For this portion of the applicant’s request, we agree with the opinion and recommendation of AFPC/DP2SPP and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  Concerning the applicant’s request to be returned to active duty if selected for promotion to CMSgt on a supplemental promotion Board, the Board chose not to make an independent determination on said request, but will rely upon the Air Force Personnel Center to follow normal procedures for supplemental promotions.  Therefore, we recommend the applicant's records be corrected as indicated below.

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	1.  His enlisted performance reports (EPRs) covering the periods 1 October 2008 through 30 September 2009 and 1 October 2009 through 30 September 2010, be corrected to reflect the grade of Senior Master Sergeant.  

	2.  He be provided Supplemental Selection Board (SSB) consideration for promotion to the grade of Chief Master Sergeant beginning with promotion cycle 11E9 and continuing with all subsequent promotion cycles for which he was eligible. 

The following members of the Board considered AFBCMR Docket Number BC-2012-05342 in Executive Session on 30 Nov 17 under the provisions of AFI 36-2603:

Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05342 was considered:

	Exhibit H.  Original ROP, dated 12 Sep 13.  
Exhibit I.  Denial of Reconsideration, dated 7 Jan 15.
Exhibit J.  RECON DD Form 149, dated 11 Feb 16, w/atchs.
Exhibit K.  Excerpt from Personnel Record.
Exhibit L.  AFPC/DP3SP Advisory, dated 4 Aug 17. 
	Exhibit M.  Letter, SAF/MRBC, dated 9 Aug 17.
	Exhibit N.  Memorandum, AFPC/DP2SPP, dated 5 Sep 17.
	Exhibit O.  Letter, SAF/MRBC, dated 15 Sep 17.
Exhibit P.  Letter, Applicant, Undated, w/atchs. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.