RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00092 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His AF Form 911, Enlisted Performance Report (MSgt thru CMSgt), rendered for the period 20 Aug 09 thru 21 Jan 10, be declared void and removed from his records. 2. He be granted supplemental promotion consideration to the grade of Senior Master Sergeant (SMSgt) for the 11E8 cycle. 3. He be awarded the Meritorious Service Medal (MSM) 4. By letter dated 5 Nov 13, the applicant amended his request to include removing the control roster action from his record. _________________________________________________________________ APPLICANT CONTENDS THAT: His EPR was accomplished with malice and callousness. He was rated on personal bias and events that occurred outside the reporting period. During the reporting period he was treated unfairly; not given performance feedback, nor afforded the same treatment as his peers, and was sexually harassed by his rater. He was informed by his rater that the commander had made a mistake and he “did not deserve to be a MSgt anymore.” This confirmed his beliefs that his Air Force career would be shaped on the basis of a supervisor who cancelled his assignment, let it be known he did not deserve his current rank, and informed him that he would never be promoted. He was the only Senior Noncommissioned Officer (SNCO) within the squadron that was not rated by their flight commander. Selecting a rater outside of his flight was an isolated act that resulted in an equitable reporting period. He never received performance feedback during the reporting period, even after requesting it from his rater. His first sergeant was a witness to the lack of supervision he received. His rater pressured and intimidated him to check the “yes” block in section XII, Ratee’s Acknowledgement of the contested EPR. His rater made it clear that he would be upset if he did not check the “yes” block. He was bullied into signing the form as a new threat of his PCS orders being cancelled looming over his head. He feared his rater would call the Air Force Personnel Center (AFPC) and have his assignment cancelled for a second time. In Dec 09, in the presence of his peers, co-workers and contractors, his rater referred to him as “gay and a rump ranger” during a Government Formal Inspection. He could not file a complaint because his rater was writing his EPR and he feared that if he complained about the harassment, he would lose his assignment. Upon his PCS to Scott Air Force Base (SAFB), Illinois, he filed a complaint with the Equal Opportunity (EO) office. The contested EPR was never forwarded to the 97th Air Mobility Wing Command Chief Master Sergeant (97 AMW/CCM) for review. Upon learning of this, the CCM instituted a policy whereby all SNCO EPRs would be routed through him to ensure consistency and fairness across the wing. His EPR was kept from the wing leadership to prevent any questions regarding its validity. On 11 Mar 11, his former first sergeant stated that Air Force standards were applied to whom the leadership saw fit, not consistently or in a fair manner within the squadron. This culture was set from the top down as the squadron commander would visit the personal homes of the enlisted personal to watch football and socialize at non-squadron events. The stories that followed these events left him with the impression that they were more than just an office get together to enjoy a ball game. It was more like a fraternity and the rules did not apply to them as long as the mission was completed. He was not part of this fraternity; therefore, he was singled out, treated unjustly and punished for being viewed as a “fast burner.” His success led many of his leaders to believe he was not worthy of the success because he had not “done his time.” His personal achievements added tension to his working relationship with his rater. This jealously led to resentment and hostility, which in turn directed an unfair rating that was not based on the specified time period but on a disagreeable long-standing relationship. One of the SNCO’s involved who does not have a flying background was the only one willing to write down what happened. He referred to the handling of this situation as the “good ole boy system.” He saw how unprofessional the others handled the situation and stated that is why he left the first sergeant career field. The actions of his leadership during this time were malicious and calculated. He was rated on a personal bias due to events that occurred outside the reporting period, not given the required performance feedback; verbally harassed for months; and his EPR was kept within the small leadership circle in the squadron in an effort to prevent any questions from their respective superiors. This injustice is the exact reason this EPR should be voided and removed from his record. In support of his appeal, the applicant’s provides a personal statement, copies of emails, memorandums for record, photographs, and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of master sergeant (E-7). On 17 Aug 09, the applicant received a Letter of Reprimand (LOR) for having an inappropriate relationship with an Airman and his commander initiated control roster action. On 20 Aug 09, the commander determined the applicant engaged in the conduct as noted in the LOR and concluded the LOR was the appropriate course of action in his case. In addition, the commander notified the applicant of his intent to establish an Unfavorable Information File (UIF) and to file the LOR in his UIF. The commander placed him on the control roster on 20 Aug 09 and removed him from the control roster on or about 22 Jan 10. On 15 Feb 13, the Board considered and denied a similar request to remove all actions caused by his placement of the control roster and that a different EPR ending 19 Aug 09 be declared void and removed from his records. For an accounting of the facts and circumstances surrounding the applicant’s request, and, the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit B. In a letter dated 14 Jun 13, the applicant provided a letter from AFPC/DPLAT5, dated 28 Sep 12 that was previously considered by the Board on 15 Feb 13. The following is a resume of his EPR ratings: RATING PERIOD PROMOTION RECOMMENDATION: 30 Sep 13 5 30 Sep 12 5 30 Mar 12 5 31 Aug 11 5 21 Jan 11 5 *21 Jan 10 4 *Contested EPR The MSM was established by Executive Order 11448 on 16 Jan 69. This award may be awarded to any member of the Armed Forces of the United States who distinguished themselves by either outstanding achievement or meritorious service to the United States. The level of achievement or service is less than that required for the Legion of Merit (LOM). The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C through E. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request to void and remove the contested EPR. The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. It is noteworthy to mention that this is the applicant’s third attempt to have three separate EPRs voided from his record, all of which he uses the same argument of reports being accomplished with malice and callousness and rated on performance outside of each inclusive period. AFI 36-2401, Correcting Officer and Enlisted Evaluation Systems, states that in worker-supervisor relationships, some disagreements are likely to occur since a worker must abide by a supervisor’s policies and decisions. Personal who do not perform at expected standards or require close supervision may believe that an evaluator is personally biased; however, the conflict generated by this personal attention is usually professional rather than personal. To convince the Board that an evaluator was unfavorably biased, specific examples of the conflict or bias must be cited and provide firsthand evidence that clearly shows how the conflict prevented the evaluator from preparing a fair and accurate report. A personal opinion statement is not firsthand evidence that proves the applicant was treated unfairly or with bias. In addition, no statements from the evaluators on record were provided supporting any of the applicant’s claims. Without the benefit of these statements, DPSID can only conclude that the EPR is accurate as written. The applicant provided e-mail correspondence from another military member; however, that member was not in his rating chain, nor assigned any specific responsibility of supervision over the applicant. The email is based solely on personal opinion and is unable to be validated, as there is no signature authentication present, or correspondence to support the applicant’s contention. AFI 36-2401, states that only members in the rating chain can confirm if counseling was provided. While current Air Force policy requires performance feedback for personnel, a direct correlation between information provided during feedback sessions and the assessments on evaluation reports does not necessarily exist. There may be occasions when feedback was not provided during a reporting period; however, a lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or unjustness of a report. Evaluators must confirm they did not provide counseling or feedback, and that this directly resulted in an unfair evaluation. If a perceived feeling of coercion existed due to marking “yes” on the evaluation, clear evidence must exist proving that the superior violated the evaluator’s rating rights. In this case, no such evidence has been provided; only a personal opinion by the applicant as he believes them to be true and therefore, the applicant’s claim lacks collaboration that he was rated unfairly. He filed a claim with the 375 AMW/EO office. However, the findings in his allegations were not-substantiated per the guidance of the 375 AMW/Staff Judge Advocate (SJA) and the wing commander at the time. Without a validated EO claim by either the EO office or the SJA, there is no evidence provided by the applicant that harassment occurred. Though a claim of harassment is taken very seriously in the Air Force, there appears to be insufficient proof to substantiate these incidents occurred. He claims he was rated with a personal bias from events outside of the rating period and leadership of the 97 Training Squadron (97 TRS) was malicious and with a “fraternity” mindset. He also claims a continuous abuse of power and manipulation of regulations and standards creating an environment where no one could have received a fair and just rating. What he fails to realize is his punishment for having an inappropriate relationship with a subordinate could have resulted in a much more serious punishment, such as a court-martial or a non- judicial punishment action; but his unit chose to give him a LOR, and a Control Roster instead, a much lesser administrative action. Not only did they show leniency and favor towards the applicant, they also chose to give him a command-directed EPR showing significant improvement and allowing him to PCS. If the applicant believed he was the victim of an unfair and bias report, and that his report may negatively influence future promotion/career opportunities, he should have initiated an Inspector General (IG) complaint. The applicant has failed to provide any evidence that he pursued any of these actions. Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander serves as a final “check and balance” in order to ensure that the report was given a fair and precise consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place. It is determined that this report was accomplished in direct accordance with all applicable guidelines and regulations. Once a report is accepted for file, only strong evidence warrants correction or removal from an individual’s record. The burden of proof is on the applicant. He has not substantiated the contested report was not rendered in good faith by all evaluators based on the knowledge available at the time. DPSID recommends denial of the applicant’s request for award of the MSM. After a thorough review of the applicant’s records, DPSID was unable to verify award of the MSM for the period from 17 Sep 05 through 19 Aug 09. The applicant provided a proposed citation for a MSM; however, he did not provide, nor were they able to locate a DÉCOR 6 for award of the MSM, a signed narrative, or any other documentation to substantiate he was submitted for award of the MSM. The proposed citation he provided does not substantiate a recommendation was placed into official channels. AFI 36-2803, The Air Force Awards and Decorations Program states “Do not award or present a decoration to any person whose entire service for the period covered by the decoration has not been honorable.” In addition, “No individual is automatically entitled to an award upon completion of an operational Temporary Duty (TDY) or departure for an assignment.” The complete DPSID evaluations are at Exhibits C and D. DPSOE recommends denial of the applicant’s request for supplemental promotion consideration to the grade of SMSgt for promotion cycle 11E8. AFI 36-2502, Airman Promotion/Demotion Programs states “A member will not normally be granted supplemental consideration if the error or omission appeared on his Data Verification Record (DVR) or in the Unit Personnel Record Group (UPRG) and the individual did not take appropriate corrective or follow-up action before the original board convened.” This policy is to reduce the number of “after the fact” changes that are initiated in an effort to get a second opportunity for promotion. The contested EPR closed out 21 Jan 10; however, the applicant did not file an appeal until 24 Dec 12. The results for the 11E8 promotion cycle were released on 10 Mar 11. The complete DPSOE evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: His claim of sexual harassment was not taken seriously because it was a male on male incident and prior to the Lackland Air Force Base, Texas scandal. Had he been a female the situation would have been corrected. He filed an EO complaint; however, the 375 AMW/EO office bungled the investigation by delaying questioning of those involved. The personnel who investigated the harassment were too scared to come forward because the complaint involved a Chief Master Sergeant (CMSgt). He was called “gay, homosexual, and a rump ranger” by a CMSgt; however, the Air Force turned a blind eye. His rater and additional rater were covering up the fact that they manipulated his assignment to SAFB. This fact was verified by AFPC/DPALT5 and his functional manager. His rater was not going to admit to doing anything wrong and there was no unbiased member to check the report. Based on this, he provided the next best insight into the squadron leadership, his first sergeant who stated that he was caught up in the “good ole boy” system. AFPC/DPSID stated that he should consider himself lucky. Since he was not part of the 97 TRS leadership, he is not qualified to make such statements. His comments will likely paint an unwarranted picture in the minds of the Board members and could taint their decision process. DPSID stated that his EPR, LOR and control roster actions were his “punishment;” however, these administrative actions as defined by AFI are not “punishment,” they are considered administrative tools. According to DPSID, he was given a control roster as “punishment;” therefore, he requests the Board remove all actions associated with the control roster as this would constitute an improper use of a control roster according to AFI 36-2907, Unfavorable Information File. He filed several IG complaints and had to wait several months to get away from his rater; therefore, the IG was not interested in his complaint. He contacted the 375 AMW/IG and Air Mobility Command/IG (AMC/IG) for assistance regarding the abuse and manipulation he was subjected to while stationed at Altus Air Force Base, Oklahoma. Once the IG learns your complaint is dealing with an EPR, they defer or dismiss your complaint stating they there are other avenues for EPRs. Both IG offices were not interested in assisting him with his EPR issues. The contested EPR was not an opportunity to document improved performance, but a manipulation of the Air Force assignment system between his unit and AMC. In Oct 09, AMC/A3 promised he would be given another assignment to SAFB in Feb 10, as soon as he came off the control roster and had another EPR. This validates that AMC/A3T was dictating to AFPC, along with his unit to determine what assignment he would receive. This action goes against AFI 36-2110, Assignments and was determined to be an “inappropriate manipulation” by his functional manager. The administrative actions were never about his performance, but tools used by his unit, dictated by AMC, to manipulate Air Force systems and place certain members in specific assignments. He has provided enough evidentiary support to validate investigating his claims beyond the surface level. He has provided documented support and written statements from supervisors that were in his chain of command, who corroborated his claim of manipulation. The working environment within the 97 TRS was filled with harassment, bias, and unethical practices. His EPR, LOR and control roster actions were used as “punishment”, which validates and upholds his contention that he was given these administrative actions as punishment and a means to manipulate the Air Force assignment system, not a record of performance The applicant’s complete submission, with attachments, are at Exhibits G and H. _________________________________________________________________ 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. The applicant's complete submission was thoroughly reviewed and his contentions were duly noted; however, we are not persuaded that corrective action is warranted in this case. We note that the applicant asserts that the contested EPR was not an opportunity to document his performance, rather a manipulation of the Air Force assignment system and therefore, it should be removed. However, other than his own assertions, we have not seen sufficient evidence by the applicant which would lead us to believe the rater abused his discretionary authority or was unable to render an accurate, unbiased evaluation of his performance, or that the contested report was based on factors other than his duty performance during the contested rating period. Therefore, we find no basis to recommend favorable action on the applicant’s request that his EPR 21 Jan 10 be voided and removed from his records. Regarding his request for supplemental promotion consideration to the grade of SMSgt, since we find no error with the contested report, no basis exists upon which to direct supplemental promotion consideration for the 11E8 cycle. With respect to the applicant’s request for award of the MSM, although he provides a proposed citation, as noted by DPSID, the applicant has failed to provide documentation to substantiate he was ever recommended for the MSM. Therefore we conclude that the applicant's request for award of the MSM is not adequately supported in that he has not provided sufficient evidence such as a Decor6 verifying that he was recommended for the MSM and that the recommendation was placed in official channels. Additionally, we note in the applicant’s rebuttal that he requests that the control roster actions he received be removed from his records. However, the applicant has not provided substantial evidence which would lead us to believe that the administrative actions taken by his commander were beyond his scope of authority, that he abused his discretionary authority in taking those actions, or that the actions taken were precipitated by anything other than the applicant's own conduct. As such, we do not find his assertions, in and by themselves, sufficiently persuasive in this matter. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no basis to recommend granting any of 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 issue(s) 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-2012-00092 in Executive Session on 9 Jan 2014, under the provisions of AFI 36-2603: Panel Chair Member Member ? The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-00092 was considered: Exhibit A. DD Form 149, dated 24 Dec 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 21 Jun 13. Exhibit D. Letter, AFPC/DPSID, dated 23 Aug 13. Exhibit E. Letter, AFPC/DPSOE, dated 13 Sep 13. Exhibit F. Letter, SAF/MRBR, dated 29 Oct 13. Exhibit G. Letter, Applicant, dated 5 Nov 13, w/atchs. 10 11