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

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01988

   						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  Any and all punishment and related negative personnel actions which resulted from his failure to report his arrest for suspicion of driving under the influence (DUI) be declared void and removed from his record, to include: 

	a.  His two Letters of Reprimand (LORs), dated 10 Oct 12 and 23 Oct 12. 

	b.  His placement on the Control Roster (CR).  

c.  His referral Enlisted Performance Report (EPR) covering the period 26 Dec 11 through 25 Dec 12 and involuntary separation.  

	d.  His non-selection for reenlistment.  

2.  He be reinstated onto active duty with his prior promotability status as of his date of separation.  

3.  At a minimum, change his Reentry (RE) code to “1,” and the Character of Discharge to “Honorable,” so he can reenlist.   

RESUME OF THE CASE:

On 29 Sep 15, the Board considered and denied the applicant’s original request for similar relief.  In his initial application, he requested his two LORs, his Control Roster entry, and his non-selection for reenlistment be declared void and removed; and, he be reinstated onto active duty with his prior promotability status as of his date of separation.  He contended DoD Regulation 5200-2.R is not punitive, and failing to obey a non-punitive regulation is only the punishable offense of dereliction of duty; requiring to report his arrest for DUI was a violation of his Fifth Amendment rights; he had been advised by his counsel not to report his arrest based on the Fifth Amendment; and, his LOR for drunken operation of a vehicle was an abuse of discretion because he was acquitted of the DUI charge in court.  In rendering their determination to deny, the Board cited the AFPC/JA advisory stating the applicant’s commander was not required to decide the matter at the criminal trial’s much higher “beyond a reasonable doubt” burden of proof.  Thus, the actions being challenged by the applicant were within the legal requirements and may stand as administered.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit J.

On 16 Mar 18, the applicant submitted a request for reconsideration.  In addition to repeating his requests for relief from his original application, he requested his referral Enlisted Performance Report (EPR) covering the period 26 Dec 11 through 25 Dec 12 be declared void and removed from his record.  The applicant submits a personal statement in which he reiterates the multiple contentions presented in his original application, and submits two new memoranda of support.  One memorandum is from a major who served as the applicant’s additional rater during the period for which he received the referral EPR.  The second memorandum is from a retired master sergeant who served with the applicant in his squadron during the period of time of the matter under review.  

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

AIR FORCE EVALUATION:

AFPC/JA recommends denial indicating there is no evidence of an error of injustice.  After a thorough review of the applicant’s evidence and multiple contentions, the applicant again fails to demonstrate an error or injustice concerning his 10 Oct 12 LOR, UIF, entry on a Control Roster, referral EPR, failure to be promoted to TSgt, or separation under the DOS Rollback Program.  Specifically concerning the applicant’s new request to void and remove his referral EPR, he submitted a memorandum from a major who served as his additional rater at the time.  The memorandum states the major believes the referral EPR was unjust.  Specifically, he finds the applicant’s “citation of our AFIs and DoD regulations to be accurate and germane to this case, and subsequently his requests.”  As a factual matter, the request for reconsideration misapplies the applicable authority in this case.  However, even if the major’s belief were not based on misapplication of applicable authority, the applicant’s request would still be insufficient.  Under AFI 36-2406, Officer and Enlisted Evaluation System, para. 10.2.4.6, the Evaluation Reports Appeal Board (ERAB) would not change an evaluator’s ratings or comments unless all subsequent evaluators also agreed to the change – including the commander.  Here the applicant has failed to provide any evidence that his former commander supports the change.  This evidence would be required if the applicant were to be granted relief before the ERAB and it should be required in this case as well.  

The applicant’s second new evidence is a memorandum from a retired master sergeant who expresses disagreement with several of the LORs received by the applicant.  Ultimately, however, it was not the master sergeant who was entrusted to make the decision about whether or not the applicant was allowed to reenlist.  Instead, it was the applicant’s commander.  Under AFI 36-2606, paragraph 2.4.3, the applicant’s commander was required to consider the applicant’s EPRs, UIF information from any substantiated source, and the applicant’s willingness to comply with Air Force standards.  The AF Form 418, Selective Reenlistment Program Consideration, dated 26 Mar 13, reflects consideration of the criteria of paragraph 2.4.3 and that consideration was reasonable.  

The applicant has failed to demonstrate error or injustice.

A complete copy of the AFPC/JA evaluation, with attachments, is at Exhibit L.  

APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION: 

In further support of his request, the applicant submitted a rebuttal response the Air Force evaluation from AFPC/JA, which takes exception to each of the conclusions presented by JA.  In his rebuttal, the applicant states the JA advisory “is very sternly written and lacks compassion or empathy:” reiterates his request for a change to his RE code at a minimum to let him reenter the military; and presents seven pages of arguments on how each of the actions taken against him by his commander was either improper or incorrectly applied.  He asks the Board to consider the whole person concept when making their decision.  

The applicant’s complete submission is at Exhibit N.

THE BOARD CONCLUDES:

1.  In an earlier finding, the Board determined there was insufficient evidence to warrant corrective action. We have reviewed the additional documentation provided by the applicant, including the letter from a retired master sergeant who disagrees with the LORs the applicant received; however, we do not find that the evidence provided overcomes the rationale expressed in the previous Board decisions.  The applicant also request his EPR covering the period 26 Dec 11 through 25 Dec 12 be declared void and removed from his record.  Although he provides a letter of support from his additional rater at the time, as noted by AFPC/JA, the applicant has failed to provide any evidence that his former commander supports the change.  Therefore, we conclude the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  As such, we find no basis upon which to recommend favorable reconsideration of the applicant’s request.

2.  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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-01988 in Executive Session on 18 Apr 17 and 14 Aug 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit J.  Original Record of Proceedings, w/atchs A-I.
	Exhibit K.  DD Form 149, dated 16 Mar 18, w/atchs. 
Exhibit L.  Memorandum, AFPC/JA, dated 7 Dec 16.
Exhibit M.  Letter, AFBCMR, dated 6 Mar 17.
Exhibit N.  Letter, Applicant, dated 2 May 17, w/atchs. 
	
Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.