RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03172 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1.  Removal of derogatory Letter of Reprimand (LOR) dated 28 Jul 08 from his Officer Selection Record (OSR) and Officer Command Selection Record (OCSR). 2.  Removal of the first sentence in Professional Qualities section on his AF IMT 475, Education/Training Report, closing 30 Jun 08, or Amendment noting dismissal of Driving Under the Influence (DUI) case. (Administratively resolved) 3.  Removal of first paragraph in Professional Qualities section on his AF IMT 475, closing 30 Jun 09, or Amendment noting dismissal of the DUI case. (Administratively resolved) 4.  He be given Special Selection Board (SSB) consideration by the CY08A (17 Nov 08) (M0408A) In-the-Primary-Zone (IPZ) Major Central Selection Board (CSB). (Administratively resolved) APPLICANT CONTENDS THAT: On 28 Jun 08, he was arrested for an off-base intoxicated driving offense while on leave in Hawaii. The initial conviction of petty misdemeanor, operating a vehicle under the influence of an intoxicant was appealed in the intermediate court of appeals of the state of Hawaii. On 26 Feb 2009, the charge was vacated and dismissed without prejudice. He was considered for promotion to the rank of Major while in the promotion zone (IPZ) in 2008-09 but was notified of being non-selected that year. Promotion rate from captain to major is typically 100 percent. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 4 Jun 06. According to documents submitted by the applicant, on 28 Jun 08, while on leave in Hawaii, the applicant was arrested, charged, and incarcerated for operating a vehicle under the influence of an intoxicant. According to copies of documents extracted from the Automated Records Management System (ARMS), on 30 Jun 08, the applicant received an AF IMT 475 for the period of 1 Jul 07 to 30 Jun 08, completing year two of the three year Family Medicine Residency Program. The Professional Qualities section of this AF IMT 475 identified the applicant received a DUI, with subsequent punishments. On 9 Jul 08, he was rendered a LOR for driving drunk and taking leave without his leave request being officially approved. Additionally, his commander notified him of her intentions to recommend that the LOR be placed in his OSR and OCSR. On 15 Jul 08, the applicant provided a response on the commander’s intent to file the LOR in his Unfavorable Information Folder (UIF), OSR, and OCSR. He apologized for his errors (driving under the influence) on the night in question, and that he did not realize the final authorization of his leave request had not been granted. He pointed out his credentials and qualities that make him an asset to the Air Force, described how he has instituted a new plan in his life regarding the use of alcohol, and that he has sought clarification of the leave policies and process, planning to educate his peers and colleagues to ensure no other Airmen makes the same mistake. On 28 Jul 08, the applicant’s wing commander determined that the LOR imposed on the applicant on 9 Jul 08, should be filed in his OSR and OCSR. According to the applicant’s contention, he was notified of being non-selected for promotion to major (CY08A (17 Nov 08) (M0408A) IPZ Major CSB) due solely to his arrest for driving under the influence. On 30 Jun 09, he received an AF IMT 475 for the period of 1 Jul 08 to 30 Jun 09, completing year three of the three year Family Medicine Residency Program. The Professional Qualities section on this AF IMT 475 identified the applicant received a DUI, evaluated by the AF Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, and completed the program. This was a one-time occurrence. On 14 Sep 09, the applicant was selected and promoted to the grade of major by the CY09A (14 Sep 09) (M0409A) above-the-Promotion Zone (APZ) CSB, with an effective promotion date of 1 Jun 10. On 20 Apr 15, the applicant submitted a Voluntary Separation Application, requesting separation in Oct 2015 (completion of current assignment and all active duty service commitments (ADSC)) to be near aging parents. On 23 Sep 15, the applicant’s AF IMT 475s closing 30 Jun 08 and 30 Jul 09 were removed from his records and replaced with AF Forms 77, stating: “Not rated for the above period. Report was removed by Order of the Chief of Staff, USAF.” On 30 Oct 15, the applicant was furnished an honorable discharge, and was credited with 9 years, 4 months, and 27 days of active 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, D, E, and F. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial indicating there is no evidence of an error or an injustice with respect to the applicant’s request for removal of the LOR dated 28 Jul 08 from his OSR and OCSR. On 28 Jun 08, while in Hawaii, the applicant was pulled over by law enforcement for failing to stop at a stop sign. A breathalyzer was conducted with a result of 0.132% Blood Alcohol Content (BAC) (HI DUI-.08% BAC). He was arrested, charged, and incarcerated for operating a vehicle under the influence of alcohol. Additionally, it was discovered that the leave the applicant was on at the time of this incident, had not been officially approved, and the location indicated on the leave request was his local address as the leave destination, when in fact he traveled to Hawaii. While they could not determine if the commander’s action of administering the LOR was just or not, they concluded proper procedures were followed when the LOR dated 9 Jul 08 was issued and filed in the applicant’s OSR and OCSR. A complete copy of the AFPC/DPSIM evaluation, with attachments, is at Exhibit C. AFPC/DPSID did not submit a recommendation, but did provide their 23 Sep 15, memorandum to the applicant advising him of the administratively resolved corrective actions regarding his requested relief pertaining to his AF IMT 475. It was determined the first avenue of relief pertaining to applicant’s request to remove or amend his AF IMTs 475, would be through the Evaluation Report Appeals Board (ERAB). They forwarded the application to the ERAB; and in the 23 Sep 15 memorandum advised the applicant the corrective action requested pertaining to the AF IMTs 475 was resolved by issuing AF Forms 77, Letter of Evaluation, stating: “Not rated for the above period. Report was removed by Order of the Chief of Staff, USAF.” A complete copy of the AFPC/DPSID evaluation, with attachments, is at Exhibit D. AFPC/DPSOO recommends denial indicating there is no evidence of an error or an injustice with respect to the applicant’s request for SSB consideration. Their evaluation of the applicant’s requested relief required them to rely on the opinions of other Air Force experts. As such, based on AFPC/DPSIM’s recommendation to deny the request to remove the LOR, they recommend denial for further SSB consideration. Notwithstanding the above; as a result of the ERAB removing the AF IMT 475 closing 30 Jun 08, and replacing it with AF Form 77, stating: “Not rated for the above period. Report was removed by Order of the Chief of Staff, USAF,” the Chief of Officer Promotions and Selective Continuation Branch has granted him SSB consideration for the CY08A (17 Nov 08) (M0408A) IPZ Major CSB. On 7 Oct 15, they notified the applicant of granting his request for SSB consideration for the CY08A Major CSB. A complete copy of the AFPC/DPSOO evaluation, with attachments, is at Exhibit E. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice with respect to the applicant’s request for removal of the LOR dated 28 Jul 08. In the review of the evidence provided, they determined the applicant has failed to establish a material error or injustice regarding the LOR. He contests the legality of the LOR because a subsequent appeal of his conviction for DUI to a Hawaii intermediate appellate court resulted in the dismissal of the charge due to the failure of the prosecution to plead and prove an element of the offense in the original charge (i.e., the vehicle was operated on a public street…). The dismissal, because of a “technicality” rather than on the merits, does not invalidate or otherwise impact the validity of the LOR. The applicant acknowledged the conduct (DUI and not following proper leave procedures) that was addressed in the reprimand. For these reasons, that portion of the application related to the LOR should be denied. A complete copy of the AFPC/JA evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 3 Nov 15, for review and comment within 30 days (Exhibit G). 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 notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR), and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice warranting removal of the derogatory Letter of Reprimand (LOR) dated 28 Jul 08 from the applicant’s Officer Selection Record (OSR) and Officer Command Selection Record (OCSR). Specifically, we note AFPC/JA’s determination that the dismissal of the DUI charge because of a “technicality” rather than on the merits does not invalidate or otherwise impact the validity of the LOR. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting any relief beyond that rendered administratively. 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-2014-03172 in Executive Session on 10 Dec 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03172 was considered: Exhibit A.  DD Form 149, dated 30 Jul 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPSIM, dated 17 Oct 14. Exhibit D.  Memorandum, AFPC/DPSID, dated 23 Sep 15. Exhibit E.  Memorandum, AFPC/DPSOO, dated 7 Oct 15. Exhibit F.  Memorandum, AFPC/JA, dated 2 Nov 15. Exhibit G.  Letter, AFBCMR, dated 3 Nov 15.