RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02687 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Enlisted Performance Report (EPR) with the close out date of 9 August 2011 be removed from his records. He be provided supplemental promotion consideration to the grade of senior master sergeant (E8) beginning with promotion cycle 2012. APPLICANT CONTENDS THAT: He was the subject of a Commander Directed Investigation (CDI) for an allegation of sexual harassment that occurred at the 2010 annual awards banquet. The legal review of the allegations contained in the CDI found they were unsubstantiated. The IG report also shows he was erroneously removed from his Air Force Specialty Code (AFSC). He received a call from his wife who stated that she was leaving him. He got drunk and flirted with a woman that was not his wife. He sought solace by flirting and making a couple of inappropriate comments to a civilian woman. He regrets the comments he made that night. In spite of the nature of the inappropriate comments, he does not believe the comments should be labeled as sexual harassment. He also does not believe the situation created a hostile work environment. Nevertheless, he received a LOR for the misconduct and his EPR noted the misconduct as sexual harassment. The comment is incredibly vague and leads the reader to believe he violated the legal definition of sexual harassment; not that he made a couple of inappropriate comments while off duty. Air Force Instruction 36-2406, Officer and Enlisted Evaluation Systems, gives specific instructions on how to comment on situations; however, that guidance was disregarded. The AFI states when comments are included in performance reports, they must be specific, outlining the event and any corrective action taken. The comment in his EPR should have been clear by stating he made a couple of improper sexually suggestive and harassing comments, rather than the vague language used. In February 2014, he requested the 2011 referral EPR be removed through the Evaluation Report Appeals Board (ERAB). The ERAB concluded that he did not have enough evidence to prove his allegations. He believes the ERAB did not consider all the evidence submitted. He feels the EPR is unjust and does not reflect an accurate measurement of his performance due to lack of supervision by the rater. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant entered the Regular Air Force on 4 August 1994. On 3 February 2011, the applicant was issued a Letter of Reprimand after an investigation disclosed he sexually harassed a staff sergeant between on or about 1 January 2010 and on or about 12 November 2010; and, he displayed inappropriate behavior towards a civilian on or about 30 October 2010. The applicant provided a written response to the LOR. The commander considered the response and determined the LOR would be maintained. On 21 November 2011, the applicant was issued a Referral EPR. The applicant provided a written statement for the commander’s consideration. The additional rater and reviewer considered the applicant’s response to the referral EPR. On 16 March 2012, the applicant filed a complaint with the Office of the Inspector General (IG) alleging reprisal by responsible management officials (RMO) within his unit. The complaint alleged he was issued a referral EPR after he made a protected communication, in violation of Title 10 U.S.C. Sec. 1034. This complaint was the appeal of a previous complaint that was dismissed in September 2011. On 4 February 2013, the IG found the applicant was not reprised against when his commander issued him a referral EPR. The IG agreed with the investigating officer that the referral EPR was related to the applicant’s performance and not a result of protected communication. Therefore, the allegation was not substantiated. On 26 December 2013, the Department of Defense Inspector General Whistleblower Reprisal Investigations Office, the final approval authority on whistleblower reprisal cases, concurred with the finding. The applicant retired from the Air Force on 31 January 2015 in the grade of master sergeant. He was credited with 20 years, 5 months and 27 days of active duty service. 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 C through D. AIR FORCE EVALUATION: AFPC/DPSID recommends denial. The applicant filed an appeal through the ERAB under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Systems; however, the case was returned requesting additional supporting evidence. After 30 days of inactivity, the system automatically closed the case. The applicant contends that the referral EPR rendered does not reflect an accurate measurement of his performance. The applicant received an LOR for sexual harassment of three individuals. The memorandum that the applicant provided to the AFBCMR for consideration into his case states that he deeply regretted the comments made that night. The applicant further states his comments were forward and inappropriate. He did not mean to offend the woman and he expressed a heartfelt apology days later. He never intended to "harass" anyone, and in spite of the inappropriate nature of the comments, does not believe labeling a couple of inappropriate and drunken comments as "sexual harassment" is a fair characterization.” The evaluators are obligated to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential. Only the evaluators know how much an incident influenced the report. AFI 36- 2406, paragraph 1.3.1 states evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the UCMJ, or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken. The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred the applicant for comments and consideration. The applicant provided no evidence within his case to show that the referral comment on the EPR was inaccurate or unjust; therefore, the inclusion of the referral comment on the EPR was appropriate and within the evaluator's authority to document. Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final check and balance to ensure the report was given fair consideration in accordance with the established intent of the Officer and Enlisted Evaluation System. Based upon the presumed sufficiency of the LOR action that was served to the applicant, its mention on the contested report was proper and in accordance with all applicable Air Force policies and procedures. The fact remains that the applicant received punishment for actions which were completely within his control. It was ultimately the applicant's responsibility as an airman in the U.S. Air Force to consistently demonstrate integrity and trustworthiness. Additionally, commanders have the responsibility to act on the basis of information they determine relevant. The commander in this case, looked at all the relevant evidence, and decided there was enough evidence to impose this punishment. Based upon the legal sufficiency of the LOR action as rendered, and no evidence that the LOR was unjust, the mention applicant's contested report was appropriate, and as such there is no basis to support removal of the contested evaluation. The applicant also states that there was a lack of immediate supervision by the rater on the report. AFI 36-2406 defines the raters as “the official, usually the ratee's immediate supervisor, designated by management to provide periodic performance feedback and initiate performance evaluations. The rater may be an officer or NCO, for enlisted rates, of a United States or foreign military service serving in a grade equal to or higher than the ratee, or a civilian in a supervisory position that is higher than the ratee in the ratee's rating chain.” In addition, AFI 36-2401, attachment Al.5.16. states that applications based on the fact that evaluators are geographically separated, working on a different shift, or new to the job, require conclusive documentation showing they had no valid basis on which to assess performance. Many individuals have to perform duties without the benefit of direct daily supervision; therefore, separation alone is not a good argument. Finally, endorsing officials have to be in the rating chain only on or after the evaluation's close-out. The applicant's report however, does require a minor correction to the close-out date as the applicant entered 9A200 AFSC on 28 April 2011 and was then placed into AFSC 9Al00 at a later date for retraining. AFI 36-2406, table 3.7, rule 9, note 11, states the closeout date of the report should have ended prior to being placed in the 9A200 AFSC. AFI 36-2406, paragraphs 10.2.3.3.6., authorizes the ERAB to modify evaluations that differ from the applicant's request. Accordingly, the EPR has been administratively corrected. 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. The applicant has failed to provide any information/support from any rating official on the contested OPR. The referral report 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. The applicant has not substantiated that the contested OPR was not rendered in good faith by all evaluators based on knowledge available at the time. The applicant has not provided compelling evidence to show that the report was unjust or inaccurate as written. The complete AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOE recommends denial. Based on the applicant’s date of rank (DOR) to master sergeant on 1 May 2010, the first time he would have been eligible for promotion consideration to senior master sergeant was cycle 12E8. However, when his AFSC was removed for cause on 28 April 2011, he became ineligible for promotion based on AFI 36-2502, Airman Promotion Program, table 1.1, rule 18. He was placed into retraining (AFS 9A200) and reclassified as a 1S0X1 effective 30 January 2013. The applicant also received a referral EPR with a close out date of 9 August 2011, which is a promotion ineligibility condition IAW AFI 36-2502, Table 1.1, Rule 22. The applicant remained eligible[sic] for promotion consideration for cycle 13E8 due to insufficient skill level. Once awarded his 7 skill level, effective 22 January 2014, he was considered but non-selected for promotion to senior master sergeant during cycle 14E8. The complete AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 26 October 2015 for review and comment within 30 days (Exhibit E). 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 an error or injustice. We took careful notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of DPSID and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We do not find his assertions, in and by themselves, sufficiently persuasive in this matter. Further, based on a totality of the evidence presented, we are not persuaded the contested EPR is an inaccurate assessment of his performance during the contested period, or that the comments contained in the report are in error or contrary to the provisions of the governing instruction. Accordingly, since we find no error or injustice with the EPR, we find no basis to recommend granting supplemental promotion consideration. With regard to the administrative correction accomplished by DPSID, we are in agreement with the action to change the closeout date of the report prior to the applicant being placed in the 9A200 AFSC. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. The applicant alleges he has been the victim of reprisal and has not been afforded full protection under the Whistleblower Protection Act (10 USC § 1034). We note, the applicant filed several IG complaints; however, SAF/IG and DoD/IG reviewed the allegations, and each time, the findings were unsubstantiated, to include alleged reprisal. Nevertheless, in accordance with 10 USC § 1034, we reviewed the evidence of record to reach our own independent determination of whether reprisal occurred. The applicant has not established that the EPR was rendered in retaliation to making a protected communication. Other than his own assertions, he has provided no evidence that would convince us the EPR was not an accurate description of his performance during the reporting period. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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-2014-02687 in Executive Session on 1 December 2015 under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Jun 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSID, dated 22 Sep 15. Exhibit D. Memorandum, AFPC/DPSOE, dated 19 Oct 15. Exhibit E. Letter, SAF/MRBR, dated 26 Oct 15.