RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03199 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1.  His referral enlisted performance report (EPR) covering the period 9 Jul 11 through 7 Aug 12, be declared void and removed from his record. 2.  His referral EPR covering the period 8 Aug 12 through 7 Aug 13, be declared void and removed from his record. 3.  His non-selection for retention by the 2014 Quality Force Review Board (QFRB) be removed from his record. 4.  He be returned to active duty and allowed to continue his military career. APPLICANT CONTENDS THAT: 1.  His referral EPR covering the period 9 Jul 11 through 7 Aug 12, was based upon his receiving an inappropriate Article 15 which was later set aside. 2.  His referral EPR covering the period 8 Aug 12 through 7 Aug 13, was based upon his failing his fitness assessment (FA), but his FA failure was due to the severe mental incapacitation of being investigated for almost two-years on a serious charge which was then set aside. 3.  He was only eligible for the QFRB because of the two referral EPRs in his record, which were incorrect negative indicators. 4.  He was unjustly forced to retire early due to his improper selection by the QFRB. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 28 May 97. According to the documentation submitted by the applicant, on 17 Jul 12, he was punished through nonjudicial punishment (Article 15) of the Uniform Code of Military Justice (UCMJ). The reason for this action was that on or about 1 Dec 11 through 27 Mar 12, on diverse occasions the applicant maltreated a female Airman who was assigned to him by making repeated offensive comments of a sexual nature to her; and, on 27 Mar 12, he unlawfully touched said Airman inappropriately with his hand. On 4 Sep 12, the applicant received a referral EPR covering the period 9 Jul 11 through 7 Aug 12, on which: a.  Section III, Block 2, Standards, Conduct, Character, & Military Bearing, was marked “Does not meet,” and included the comment “Received NJP for nappropriate conduct; did not adhere to standards required of NCOs;” b.  Section III, Block 4, Training Required, was marked “Does not meet,” and included the comment “Failed to maintain duty position cert appropriate for grade; removed as flight chief—substandard performance;” and, c.  Section V, Overall Performance Assessment, was marked “Needs Improvement (2).” On 23 Aug 13, the applicant receive a referral EPR covering the period 8 Aug 12 through 7 Aug 13, on which Section III, Block 3, Fitness, was marked “Does not meet,” and Section V, Overall Performance Assessment, was marked “Average (3).” On 1 Apr 14, the applicant’s Article 15 was set aside, and any property, privileges, or rights affected by the punishment were restored. On 5 Jun 14, the applicant was notified he was not selected for retention by the 5 May 14 QFRB, and as a result he had a mandatory date of separated (DOS) of 30 Sep 14. On 30 Sep 14, the applicant was released from active duty and on 1 Oct 14 was retired under the Temporary Early Retirement Authority (TERA) after serving 17 years, 4 months, and 3 days of total active service. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C through F. AIR FORCE EVALUATION: AFLOA/JAJM recommends granting the applicant’s request to reflect his Article 15, dated 17 Jul 12 was set aside, indicating there is evidence of an error or injustice. On 1 Apr 14, his Article 15, dated 17 Jul 12, was in-fact set side. On 15 Apr 14, the signed AF Form 3212, Record of Supplementary Action Under Article 15, UCMJ, was submitted to the Military Personnel Flight (MPF) for distribution. The applicant’s records should reflect his Article 15 was set aside. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIDE recommends partially granting the applicant’s request, indicating there is evidence of an error or injustice. The applicant received a referral EPR covering the period 9 Jul 11 through 7 Aug 12, after being falsely accused of sexual assault. At the time the report closed out, the rating chain prematurely issued a referral EPR. Based upon the facts of the Article 32 hearing, the applicant’s commander requested the Article 15 be set aside, and restored his rank to Technical Sergeant (TSgt). Therefore, the reason for the referral EPR no longer existed and it should be voided. The applicant is also requesting his referral EPR covering the period 8 Aug 12 through 7 Aug 13 received after failing his FA be declared void and removed from his record. The applicant claims he failed the AF due to mental incapacitation as a result of the two-year investigation into sexual assault, but he did not provide medical documentation to substantiate his claim. It was the applicant’s responsibility to ensure he was properly prepared for his FA. There were avenues to ensure any medical issues were taken into consideration prior to the EPR close-out date. To change or void the EPR in question would be an injustice to the Airmen who consulted with the medical community and received proper medical profiles. As long as the FA failure remains in his record, the referral EPR covering the period 8 Aug 12 through 7 Aug 13 is fair and should be retained. A complete copy of the AFPC/DPSIDE evaluation is at Exhibit D. AFPC/DPSOR recommends denying the applicant’s request for his non-retention by the QFRB to be removed from his record, indicating there is no evidence of an error or injustice. On 18 August 2013, the applicant was informed of a referral EPR for failing to meet the minimum required physical fitness standards. The Promotion Eligibility Status (PES) “R” was updated to identify the referral report of 7 August 2013. The applicant contends he was evaluated incorrectly due to a prolonged investigation, which lasted almost two years resulted in his failing his FA due to mental incapacitation. The applicant’s FA failure resulted in a referral EPR, making him eligible for the QFRB. The QFRB guidance stated “any Airman who has a negative quality indicator identified in MilPDS as of 18 December 2013 will meet the QFRB unless they separate for retire prior to the board.” On 5 June 2014, the applicant was notified of his non-selection for retention via the board. He had 16 years and 4 months of service and was offered TERA with a mandatory Date of Separation of 30 September 2014, with retirement effective 1 October 2014. Recommend denying his request to void his referral EPR covering the period 8 Aug 12 through 7 Aug 13, and his request for his non-selection for retention by the QFRB to be voided and removed from his record. A complete copy of the AFPC/DPSOR evaluation is at Exhibit E. The AFBCMR Clinical Mental Health Consultant recommends denying the applicant’s request to void and remove his referral EPR covering the period 8 Aug 12 through 7 Aug 13, indicating that from a medical perspective there is no evidence of an error or injustice. The applicant contends the referral EPR he received for failing his FA should be removed because he was unable to pass the FA due to “mental incapacitation” resulting from the stress of nearly two years of investigation. A review of the applicant’s medical records support his assertion he suffered a degree of stress during the period in question. During the period covered by the EPR in question, the applicant was seen by Military Mental Health on eight occasions. Each of the eight encounters specifically contains the statement “Released w/o Limitation,” indicating he was considered mentally able to deploy, complete his assigned duties, and comply with physical fitness standards. The applicant’s record reveals no fitness restricting profile was issued during the review period in question. Physical standards remain in force unless specific protocols for waiver are followed. The applicant has submitted no evidence to indicate he was unfit for duty or to comply with Air Force Fitness Standards. A complete copy of the BCMR Clinical Mental Health Consultant evaluation is at Exhibit F. AFPC/JA recommends partially granting the applicant’s request by voiding and removing his referral EPR covering the period 9 Jul 11 through 7 Aug 12 and offering him an opportunity to return to active duty, indicating there is evidence of an error or injustice. For nearly two years after the applicant received the Article 15, he was investigated for sexual assault based upon claims made by the same person who was the victim of the offense addressed in the Article 15. Based upon the credibility of the complaining witness, the applicant’s commander moved to set aside the Article 15, and on 1 Apr 14, the Article 15 was set aside. Therefore, the applicant’s referral EPR covering the period 9 Jul 11 through 7 Aug 12 should be declared void and removed from his record. Concerning the applicant’s request for removal of the second referral EPR covering the period 8 Aug 12 through 7 Aug 13, AFPC/JA defers to the recommendation of AFPC/DPSIDE and the BCMR Clinical Mental Health Provider to deny this request. The 2013 EPR was an overall “3” and a referral due to the failed FA. However, it was also signed at a time when the applicant was pending charges for sexual assault, assault consummated by battery and disobeying orders. The assessments at Block III are lower than in prior years and the words of faint praise “promote when ready” are used by the rater. It seems very likely the investigation leading up to the pending charges resulted in a rather lackluster EPR. Notwithstanding that, it would still have been a referral EPR for the FA failure and the applicant would have met the QFRB in any event. Concerning the applicant’s request to be removed from the 2014 QFRB list of eligibles, if the Board accepts the recommendation of AFPC/DPSIDE and the BCMR Clinical Mental Health Provider to retain the applicant referral EPR covering the period 8 Aug 12 through 7 Aug 13, any request to change the record to show the applicant did not meet the QRFB should be denied. There is no requirement for multiple negative indicators in PSDM 13-125, FY-14 Enlisted Quality Force Review Board. Therefore, as previously indicated, his remaining referral EPR would still have caused him to meet the QFRB. Concerning the applicant’s request to be returned to active duty, the question is what prejudicial impact, if any, did the inclusion of the 2012 referral EPR have on the applicant’s non-selection for retention? The two EPRs that met the QFRB either relied upon or were influenced by allegations of misconduct, later determined to be unreliable. In addition, the applicant’s AF Form 3538E, Enlisted Retention Recommendation, carried his commander’s comments that he “bounced back from false accusations and punishment; maintained can-do attitude—set-aside and retain.” While well intended, they are insufficient to clearly communicate the negative comments and mark downs in the 2012 EPR were no longer valid. The negative comments and mark-downs in the EPRs are sufficient to cast doubt on the QFRB outcome. The Air Force did not define a special board process for the FY14 and FY15 Force Management Program. Therefore, a special board would require creating a new process just for this one applicant. The conclusion the applicant would have been discharged solely on the basis of a referral EPR for a fitness failure is dubious. AFPC/JA is convinced the taint of unreliable allegations of misconduct adversely impacted the applicant in the QFRB process. If the Board agrees, the only proper remedy is to set aside the results of the QFRB and offer the applicant the option to come back onto active duty. A complete copy of the AFPC/JA evaluation is at Exhibit G. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 17 Nov 15, for review and comment within 30 days (Exhibit H). 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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. As the basis for our conclusion, the Board adopts the recommendations of the offices of the Air Force offices primary responsibility (OPRs) and the AFBCMR Clinical Mental Health Consultant, to remove the applicant’s EPR covering the period 9 Jul 11 through 7 Aug 12, void and remove the results of the QFRB, and offer the applicant the opportunity to return to active duty. However, while the Board acknowledges the recommendations of the AFBCMR Clinical Mental Health Consultant and several of the OPRs to deny the applicant’s request to void and remove his referral EPR covering the period 8 Aug 12 through 7 Aug 13, because his record reveals no fitness restricting profiles during the review period in question, we believe the applicant’s failed FA and associated referral EPR also constitute an injustice. The applicant’s multiple EPRs throughout his career indicate he maintained or exceeded AF fitness standards over the entire 17-plus years of his career, with the one exception of the one FA failure, which occurred while he was under investigation. The Board believes that a protracted investigation into a significant criminal act, which was ultimately not substantiated, and which caused the applicant to meet with a mental health provider eight (8) times during the same period of time in which he experienced the only FA failure of his career, constitutes sufficient evidence to establish that his unwarranted legal situation negatively impacted his physical fitness. Therefore, the Board believes the failed FA and the referral EPR which references the failed FA, should also be declared void and removed from his record. Therefore, we recommend the applicant’s records be corrected as indicated below. 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 issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a.  Any and all references to his Article 15, dated 17 July 2012, be expunged from his record. b.  His referral AF Form 910, Enlisted Performance Report (EPR), covering the period 9 July 2011 through 7 August 2012, be declared void and removed from his record c.  Any and all Fitness Assessment (FA) failures during the period 8 August 2012 through 7 Aug 2013, be declared void and removed from his record. d.  His referral AF Form 910, Enlisted Performance Report (EPR), covering the period 8 August 12 through 7 August 13, be declared void and removed from his record c.  His non-selection for retention by the 5 May 2014, Quality Force Review Board (QFRB) be declared void and removed from his record. d  It is further recommended he be offered the option of continuing to serve on active duty, and if he chooses to continue to serve, his records be corrected to show that on 30 September 2014, he was not released from active duty but, on that date, he continued to serve on active duty and was ordered Permanent Change of Station (PCS) to his home of record or home of selection pending further orders. The following members of the Board considered AFBCMR Docket Number BC-2014-03199 in Executive Session on 17 Dec 15, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03199 was considered: Exhibit A.  DD Form 149, dated 28 Aug 14, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFLOA/JAJM, dated 9 Dec 14. Exhibit D.  Memorandum, AFPC/DPSIDE, dated 22 Sep 15. Exhibit E.  Memorandum, AFPC/DPSOR, dated 28 Sep 15. Exhibit F.  Memorandum, BCMR Clinical Mental Health Consultant, dated 21 Oct 15. Exhibit G.  Memorandum, AFPC/JA, dated 13 Nov 15. Exhibit H.  Letter, SAF/MRBR, dated 17 Nov 15. 8