RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-02237 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
1)	The Enlisted Performance Report (EPR), for the rating period
13 May 10 through 12 May 11, be expunged from her record.
2)	She be promoted to the grade of chief master sergeant (E-9), with reinstatement to active duty, with an overseas assignment.

3)	All leave sold/lost as the result of retirement be restored.
4)	She	be	reimbursed	for	all	medical	and	dental	co-pays	paid during her retirement.

5)	She be reimbursed for all postal fees associated with initial submission of her Congressional complaint and addendums.

APPLICANT CONTENDS THAT:
Her EPR was unjust because she was not provided adequate feedback from her direct supervisor [rater] and the information regarding her performance was inaccurate.  Additionally, her rater provided a fictitious date on her EPR indicating feedback was conducted. She had little time with her new rater prior to her six-month deployment and received little to no initial feedback from him. During the deployment, she also received no feedback or communication regarding her performance. Upon returning from her deployment, she was marked down in leadership and her EPR was closed out at a lower level (Group level vs Wing level). Her rating of “Above Average,” and lack of senior rater indorsement, had a direct result in her non-selection for promotion. Her non- selection for promotion resulted in an earlier-than-desired mandatory separation for High-Year Tenure (HYT). Further, she had to sell (and/or lose) leave and incur TRICARE copays she would not have had if she were still on active duty. She filed an Inspector General (IG) complaint that resulted in a “chain of command issue” that was not resolved to her satisfaction.

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

STATEMENT OF FACTS:
On 25 Sep 84, the applicant entered the Regular Air Force.
According to the applicant’s AF Form 911, Enlisted Performance Report, for the rating period 13 May 10 through 12 May 11, Section III (Performance Assessment), item 6, “Leadership/Team Building/ Followership/Mentorship,” she was rated “Above Average;” Section V, Overall Performance Feedback, reflects the last feedback was performed on 23 Jan 11; in section XII, Ratee’s Acknowledgement, the applicant checked the “no” box indicating her non-concurrence that feedback was properly conducted.

On 19 Jun 11, the applicant the applicant filed an IG complaint via an AF IMT 102, Inspector General Personal and Fraud, Waste and Abuse Complaint Registration, with the 6 AMW/IG regarding. The complaint alleged the markdown on her EPR for leadership was without documented feedback and the documented feedback date did not occur. A Commander Directed Investigation (CDI) was recommended on 25 Aug 11 (Exhibit C).

The specific allegations considered are as follows:
(1)	The applicant’s rater failed to provide initial and mid- term feedback to her prior to marking down her performance evaluation, in violation of AFI 36-2406, para. 22.2.1 and 2.4. is SUBSTANTIATED.

(2)	The applicant’s rater provided a false feedback date on her performance report that closed out on 12 May 11 is UNSUBSTANTIATED.

On 21 Sep 11, as a result of the CDI, the applicant’s commander acknowledged the feedback date on her contested EPR should be changed to “N/A.” Feedback was later given when the applicant returned to duty on 20 Apr 11. Further, the applicant’s commander was unaware the applicant previously signed her EPR and stated the unit would work with AFPC to correct the report (Exhibit D).

On 31 Dec 11, the applicant was relieved from active duty and retired in the grade of senior master sergeant (E-8), effective
1 Jan 12, and was credited with 27 years, 3 months, and 6 days of active service.

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, item 16,“Days Accrued Leave Paid,” indicates 0 (zero) days leave were paid upon her retirement.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits E, F, G, H, I, and J.

AIR FORCE EVALUATION:
AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice to grant the applicant’s request to remove the contested EPR from her record. The applicant did file an appeal through the Evaluation Report Appeals Board (ERAB); however, the ERAB returned the case without action for lack of supporting documentation and the case automatically closed after
30 days of inactivity.
A rater’s failure to conduct required or requested feedback session, or document the session on a Performance Feedback Worksheet (PFW), does not invalidate a performance report. When a required feedback does not take place, AFI 36-2406, Officer and Enlisted Evaluation Systems, states it is the ratee’s responsibility to notify the rater, and if necessary, the rater‘s rater, when required or requested feedback did not take place. Further, since the ratee shares the responsibility to ensure feedback sessions occur, a feedback notice is also sent to the rate. In this case, the applicant does not appear to have sought any remedies from the additional rater of the report to obtain feedback if this was not completed.

In addition, AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, states “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. For example, if after a positive feedback session, an evaluator discovers serious problems, he or she must record the problems in the evaluation report even when it disagrees with the previous feedback. There may be occasions when feedback was not provided during a reporting period, or a specific issue was not addressed; the lack of counseling or feedback, by itself, is not sufficient to challenge the accuracy or validity of an evaluation.

The applicant checking “[Yes or] No” in Section XII, (Ratee’s Acknowledgement) to indicate not receiving feedback, also does not invalidate the report; rather, it means the member acknowledged receipt of the EPR. In this case, the applicant has not provided any relevant documents to prove this allegation. In the absence of sufficient evidence of an unfair report based on its content, it is concluded the EPR was written fairly and in accordance with all Air Force policies and procedures.

Air Force policy is that 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. Statements from the evaluators during the contested period are conspicuously absent.  The applicant has failed to provide this

necessary information/support from any rating official on the contested EPR. Without the benefit of these statements, it can only be concluded the EPR is accurate as written. It is determined that the EPR was accomplished in direct accordance with all applicable Air Force policies and procedures; only strong evidence to the contrary warrants correction or removal from an individual’s record. It is further noted that negative factors do not need to be present or even exist in order to receive a “4” or “Above Average” rating, as this clearly signifies performing “above” the established standard; however, in this case the applicant’s rating is an overall “5” which clearly shows she was “Truly Among The Best”.

It is recommended to deny the applicant’s request to remove the EPR from her record.

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.
AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice to grant the applicant’s request to be promoted to the grade of chief master sergeant (E-9). The applicant’s contested EPR was used in the promotion process during cycle 11E9. The applicant received an EPR score of 135.00 (max allowable points), a board score of 285.00 (450.00 max score), for a total score of 564.50. The score required for selection in her specialty was 634.08. It is noted AFPC/DPSID found the applicant’s contested report accurate as written, and recommends denial of her request to void it from her records.

As there is no current Air Force policy to allow for an automatic promotion, it is recommended to deny the applicant’s request for promotion to the rank of chief master sergeant (E-9); a grade to which she was never selected. Should the Board grant her request to void the contested EPR, it is recommended to direct supplemental promotion consideration to E-9 for cycle 11E9.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit F.
AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice to grant the applicant’s request to be reinstated to active duty. At the time of her separation, the current HYT policy for a senior master sergeant was 26 years of service. Enlisted members who are approved for HYT extensions for hardship or best interest of the Air Force may serve until completion of their approved extension period. The applicant received an extension to her HYT, which allowed her to remain on active duty beyond the established 26 year period, to her Date of Separation of 31 Dec 11 (27 years 3 months and 6 days). The applicant reached her HYT, and beyond, and would not have been able to remain on active duty longer unless placed on medical hold, had an adverse action pending, or selected for promotion.

It is recommended to deny the applicant’s request. The applicant served the appropriate time in service for her grade and did not have a projected promotion on file to extend her HYT.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit G.
AFPC/DPSIMC recommends denial indicating there is no evidence of an error or an injustice to grant the applicant’s request to restore 60 days of leave. The applicant contends, due to her HYT, she was forced to retire and sell all of her accrued leave. According to AFI 36-3003, Leave Program, the maximum amount of leave any Air Force member can sell is 60 days. The applicant has not displayed an error or injustice in having the option to sell her leave. Additionally, as the applicant is no longer a part of the Armed Forces (Active, Guard, or Reserve), AFPC/DPSIMC is unable to recommend restoration of the leave to her account.

It is recommend to deny the applicant’s request to restore all leave sold back. However, if the Applicant is brought back to active duty, this OPR defers to the Defense Finance and Accounting Service (DFAS) for all issues of restoring sold leave. Further, her record should be corrected to restore 60 days of leave paid to her, and the money paid to her for those leave days be recouped.

A complete copy of the AFPC/DPSIMC evaluation is at Exhibit H.
AFPC/DPAA recommends denial indicating there is no evidence of an error or an injustice to grant the applicant’s request for an overseas assignment. Her eligibility for an assignment is contingent on the outcome of her other requests. Specifically, if reinstated and promoted to the grade of chief master sergeant, her assignment would be worked by the Chiefs Group at the Pentagon. Further [at the time of separation], the applicant had an assignment medical limitation code with an indefinite expiration date. Additionally, she would not have sufficient retainability for the overseas long tour assignment. She could get retainability for a short unaccompanied tour; however, based on her assignment medical limitation code, she would most likely not be eligible pending the outcome of a medical standards review.

If the applicant is reinstated to active duty and promoted, it is recommended her case be forwarded to the Chiefs Group who will be required to provide a CONUS assignment based on lack of retainability and her medical limitations.

A complete copy of the AFPC/DPAA evaluation is at Exhibit I.
AFPC/DPSIZ recommends denial. The applicant has not exhausted all available avenues of administrative relief prior to seeking correction of their military record. Administrative relief for medical and dental co-pays incurred by the applicant while on active duty, including in a retirement status (as reflected in DEERS), requires consideration from the Defense Health Agency

(DHA), formerly TRICARE Management Activity (TMA) for TRICARE medical and or dental plans. The applicant has been provided DHA contact information in the complete AFPC/DPSIZ advisory opinion.

A complete copy of the AFPC/DPSIZ evaluation is at Exhibit J.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant understands the OPR’s position, with regards to their recommendations for reimbursement of TRICARE and dental expenses, assignment location, leave balance adjustment/recoupment, high year tenure (HYT) limitations, and consideration for supplemental promotion are all predicated on the Board’s decision regarding her reinstatement to active duty. Her point of contention is with AFPC/DPSID’s recommendation regarding the validity of her performance report. She states the events, as described in her original application, are facts and not assumptions or speculation on her part. There was never any documented feedback by her rater to substantiate performance that would earn a rating of anything less than “clearly exceeds” standards in the area of leadership. Her previous evaluations are evidence of superior performance and the supplemental evaluation received while deployed validates her contention her performance remained at the highest level, which was outside her reporting official’s day-to-day observation. This unjust markdown kept her from receiving a senior-rater endorsement, which directly contributing to her nonselection for promotion. (Exhibit K).

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	With regards to the applicant’s request to have the Enlisted Performance Report (EPR), for the rating period 13 May 10 through
12 May 11, be expunged from her record, insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case, to include her rebuttal response; however, we agree with the opinion and recommendation of AFPC/DPSID and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Specifically, the Board noted the absence of documented feedback, or a feedback entry of “N/A,” does not invalidate an EPR. Additionally, the applicant’s leadership rating of “Above Average” was not unduly harsh and well within the rating official and senior rater’s judgment to make. Further, with no evidence of a willingness to upgrade or revise the leadership rating by her chain of command, we believe the rater’s

evaluation of the applicant’s day-to-day performance was accurate as recorded, and the EPR should not be void from her record.

The Board notes the applicant’s additional requests follow a sequence of events, predicated on removal of the contested EPR, which could have resulted in her possible reinstatement to active duty, a promotion, an overseas assignment, the restoration of leave, and the reimbursement of fees for medical and dental care that would have been at no-cost to an active duty member. As the Board found no evidence to expunge the contested EPR from her record, there is no recommendation to correct any other portion of her record.

With regards to the applicant’s request for reinstatement to active duty, promotion to the grade of chief master sergeant (E- 9), and an overseas assignment, we agree with the opinions and recommendations of the Air Force OPR’s and adopt their rationale as the basis for our conclusions. Specifically, we  note AFPC/DPSOR identified the applicant was already beyond her original HYT, and therefore, a promotion was the only viable option to extend her period of service. As AFPC/DPSOE stated, an automatic promotion is not an option, and the Board concluded the EPR was not invalid, so a supplemental promotion would not be warranted. Therefore, without reinstatement to active duty and a promotion, the Board finds no basis to grant the applicant an overseas assignment.

With regards to the applicant’s request to restore her sold or lost leave, the Board found no evidence of an error or injustice. We concurred with AFPC/DPSIMC’s assessment there is no evidence to substantiate the applicant was forced to sell or lose leave. Additionally, without reinstatement to active duty, there is no process to restore leave to someone who is not a current member of the armed forces.

With regards to the applicant’s request for reimbursement for all medical and dental co-pays paid during her retirement, the Board found this request was without merit. The applicant’s separation for retirement was found to be without error or injustice; therefore, any medical or dental expenses incurred since retirement are the applicant’s responsibility.

Finally, with regards to the applicant’s request for reimbursement for postal fees associated with initial submission of her Congressional complaint and addendums, the Board found no justification to grant this request. With all previous requests lacking evidence of an error or injustice, any postal fees incurred by the applicant are her responsibility and beyond the purview of this Board.

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-2014-02237 in Executive Session on 22 Oct 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 30 May 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	CDI Investigation, received 26 Aug 14 Exhibit D.	SAF/IG Investigation, received 26 Aug 14 Exhibit E.	Memorandum, AFPC/DPSID, dated 8 Aug 14. Exhibit F.	Memorandum, AFPC/DPSOE, dated 25 Aug 14. Exhibit G.	Memorandum, AFPC/DPSOR, dated 31 Oct 14. Exhibit H.	Memorandum, AFPC/DPSIMC, dated 27 May 15. Exhibit I.	Memorandum, AFPC/DPAA, dated 10 Jun 15.
Exhibit J.	Memorandum, AFPC/DPSIZ, dated 11 Jun 15. Exhibit K.	Letter, SAF/MRBR, dated 17 Sep 15.
Exhibit L.	Letter, Applicant, dated 13 Oct 15.