RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00510

  						COUNSEL:  YES

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.	He be reinstated on active duty in the United States Air Force in the rank of Technical Sergeant with a date of rank (DOR) equal to the date he was separated. 

2.	His “Not Recommended” for reenlistment be expunged from his official military personnel records.

3.	His referral Enlisted Performance Report (EPR) which was rendered for the period of 2 Mar 11 through 1 Mar 12 be removed from his record.  (In rebuttal, the applicant requests this EPR be expunged from his record).

4.	He receive back pay and allowances, less amounts required by law, to be deducted from the date of his separation to present.

5.	He be credited with time in grade (TIG) for pay, promotion and retirement purposes from the date of his separation to present.

6.	He be credited with 60 days of ordinary leave upon his payment of the leave buy back which occurred when he separated by offsetting his back pay.

APPLICANT CONTENDS THAT:

He was improperly denied reenlistment due to command bias; which was confirmed by the Inspector General letter dated 22 Mar 2010 and documentary evidence.

On 21 Jun 12, he was recommended for reenlistment.  This date is critical because on 14 Feb 13, he was not recommended for reenlistment based exclusively upon nominally adverse information within Letters of Counseling (LOCs) and Letters of Reprimand (LORs); all of which were dated prior to 21 Jun 12.  The “Not Recommended for Reenlistment” provided the following rationale:  In the current enlistment period member received three LOCs and six LORs for poor duty performance, failure to adhere to standards, and conduct unbecoming a Non-Commissioned Officer.

The last adverse action taken against him was in Feb 12; a full year before he was not recommended for reenlistment.  There was no legitimate basis for a recommendation not to reenlist.  His EPR rendered for the period 2 Mar 12 through 1 Mar 13 is virtually the exact period from the last LOR in Feb 12.  The EPR states:  He was an “Above Average” SSgt.  He was marked as “Clearly Exceeds” in Part II, Blocks 1 and 5.  He was marked as “Above Average” in Part III, Blocks 2 and 4.  His EPRs for 1 Apr 09 through 1 Mar 10 and 2 Mar 10 through 1 Mar 11 is equally outstanding.  

It is absolutely transparent that his commander improperly and with ill intent denied his reenlistment.  

On 20 Jul 13, he separated from the Air Force at the end of his enlistment.  The reason was he was denied reenlistment in accordance with AFI 36-2606, Reenlistment in the United States Air Force.

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

STATEMENT OF FACTS:

On 1 Sep 00, the applicant entered the Regular Air Force.

On 20 Jan 10, the applicant received a LOR for a third traffic offense in a six month period.

On 19 Jul 10, the applicant received a LOC for failure to dispose of expired Hazmat material as directed. The applicant submitted a rebuttal in response to the LOC.

On 23 Aug 10, the applicant received a LOC for a first time fitness failure.  The applicant did not respond to the LOC.

On 18 Jul 11, the applicant received a LOR for displaying unprofessional behavior and disrespect towards a company grade officer.  The applicant submitted a response.

On 5 Aug 11, the applicant received a LOR for smoking in an undesignated area and wearing an unauthorized uniform item (flip-flops) while in uniform on-duty.  The applicant submitted a response.  

On 2 Sep 11, the applicant received a LOR for disrespecting a non-commissioned officer and failing to follow a direct order.  The applicant submitted a response.

On 28 Sep 11, the applicant received a LOR for demonstrating poor judgment as a non-commissioned officer.  The applicant submitted a response.

On 8 Feb 12, the applicant received a LOC for failing to report to duty on time.  The applicant submitted a response.

On 16 Feb 12, the applicant received a LOR for failing to report to work on time for a second time within one week.  The applicant submitted a response.  

On 1 Mar 12, the applicant’s rater referred AF Form 910, Enlisted Performance Report (EPR), rendered for the period of 2 Mar 11 thru 1 Mar 12.  The rater marked the applicant as “Does Not Meet” standards in Block III, Performance Assessment, Section 2, Standards, Conduct, Character and Military Bearing and Section 5, Teamwork/Followership. On 16 Mar 12, the applicant provided a rebuttal in response to the referred EPR.  On 21 Mar 12, the additional rater carefully considered the applicants rebuttal comments and concurred with the rater’s assessment. 

On 21 Jun 12, the applicant via an AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airman in the Regular Air Force/Air Force Reserve, was recommended by his supervisor and selected by his commander for reenlistment.

On 14 Feb 13, the applicant’s supervisor via an AF Form 418 “Not Recommended” him for reenlistment.

On 19 Feb 13, the applicant’s commander via an AF Form 418 “Not Selected” him for reenlistment.  The commander provided the following justification:  “I do not believe member’s conduct is conducive with continued service in the Air Force.  In the current enlistment period (21 Aug 09 - Present), member received 3 Letters of Counseling (LOC) and 6 Letters of Reprimand (LOR) for poor duty performance, failure to adhere to standards and conduct of a non-commissioned officer.”  The applicant acknowledged his commander’s recommendation. 

On 22 Feb 13, the applicant notified his commander of his intent to appeal.  On 11 Mar 13, the applicant submitted a reenlistment denial appeal. On 16 Apr 13, the applicant’s commander responded to his appeal and found no evidence to substantiate reversing the decision. On 22 Apr 13, the applicant provided a response to the commander’s response to his appeal.

On 26 Apr 13, the staff judge advocate, reviewed the applicant’s Selective Reenlistment Package (SRP), his appeal, and found it legally sufficient in accordance with AFI 36-2606.  

On 6 Jun 13, the appeal authority denied the applicant’s request and on 10 Jun 13, the applicant acknowledged his denial of appeal. 

On 20 Jul 13, the applicant was honorably discharged in the grade of staff sergeant and was credited with 12 years, 10 months, and 20 days of active service. 

The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, reflects a Reentry (RE) code of “2X” which is defined as “First Term, Second Term, or Career Airman non-selected for reenlistment.”

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C - H. 

AIR FORCE EVALUATION:

AFPC/DPSOA recommends denial of the applicant’s request to change his RE code and reinstatement onto active duty indicating there is no evidence of an error or an injustice.  The applicant was discharged because he was denied reenlistment.  

AFI 36-2606 states commanders have reenlistment selection or non-selection authority.  The SRP considers the members EPR ratings, unfavorable information for any substantiated source, the airman’s willingness to comply with Air Force standards and/or the airman’s ability (or lack of) to meet required training and duty performance levels.  

The applicant entered his SRP window in Jun 12 and was selected for reenlistment.  However, it should be noted, that commanders can and do initiate new AF Forms 418 at any time during a member’s SRP window, which is a 13 month period before the Expiration Term of Service (ETS).  It routinely happens when a member was either selected or non-selected and the commander reverses their decision.

In this particular case, the applicant was still in his SRP window on 19 Feb 13 when he was non-selected for reenlistment by a different commander than the one that selected him on 21 Jun 12.  The applicant’s belief that once he was selected for reenlistment, he could not be non-selected without additional disciplinary issues occurring after 21 Jun 12 is inaccurate.  SRP encompasses the entire enlistment period.  

Although the applicant questions his leadership’s motives it is clear the commander had justification to deny reenlistment.  The sheer number of LOCs and LORs cannot be attributed to bias from the applicant’s chain of command.  

A complete copy of the AFPC/DPSOA evaluation is at Exhibit C.

AFPC/DPSOR-SEP recommends denial of the applicant’s request for reinstatement indicating there is no evidence of an error or an injustice.  The applicant received the proper Separation Program Designator code, narrative reason for separation, and character of service.  The discharge was consistent with the procedural and substantive requirements of the discharge authority and was within the discretion of the discharge authority.  

A complete copy of the AFPC/DPSOR-SEP evaluation is at Exhibit D.

AFPC/DPSIM recommends denial of the applicant’s request.  There is no evidence of an error or an injustice.  The applicant’s commander was within his authority to administer administrative actions and place them in the applicant’s Unfavorable Information File (UIF).  

A complete copy of the AFPC/DPSIM evaluation is at Exhibit E.

AFPC/DPSOE recommends denial of the applicant’s request for reinstatement and for promotion to the grade of TSgt indicating there is no evidence of an error or an injustice. 

Based on the applicant’s date of rank (DOR) of 1 Sep 10, the first time he would have been eligible for promotion consideration to the grade of TSgt was cycle 13E6.  However, the fact he received a referral EPR rendered him ineligible.

DPSOE does not support reinstatement to active duty in the grade of technical sergeant; a grade the applicant never held.  Furthermore, current Air Force policy does not allow for an “automatic” promotion. 

If the applicant was reinstated to active duty, DPSOE would be unable to provide supplemental promotion consideration to the grade of TSgt for past cycles as there is not a Specialty Knowledge Test (SKT) or Promotion Fitness Examination (PFE) on file.  The SKT and PFE are an integral part of the weighted factors and the promotion selection process.  Without test scores, it is not possible to provide promotion consideration.  Normally, in this situation, they would allow the applicant time to study/test if reinstated, and then apply test scores retroactively to all appropriate cycles.  However, the applicant’s high year of tenure (HYT) of 30 Sep 15 rendered this option unfeasible.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit F.

AFPC/DPSID recommends denial of the applicant’s request to remove his referral EPR indicating there is no evidence of an error or an injustice.  

The applicant contends that the referral “2” EPR should be removed due to his belief there were only two LOCs and one LOR that were considered by his command and he feels were not sufficiently significant to rate him lower on the report.  

In fact, the applicant received LOCs, LORs, and UIF, and was place on a control roster during the rating period for multiple infractions.  The evaluators are obliged to consider such incidents, their significance and the frequency with which they occurred in assessing performance and potential.  Only the evaluator knows how much an incident influence the report.  AFI 36-2406, Officer and Enlisted Evaluation Systems, Chapter 1, 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 Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling’s, 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 to the applicant for comment and consideration to the next evaluator.  The applicant provided insufficient evidence within the case to show that the referral comment on the EPR was inaccurate or unjust; therefore, they contend that the inclusion of the referral comment on the EPR was appropriate and within the evaluators authority to document given the incident.  Moreover, a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the review/commander served as a final “check and balance” in order to ensure that the report was given a fair consideration in accordance with the established intent of the current evaluation system in place.  

Based upon the presumed sufficiency of the LOR as served to the applicant, its mention on the contested report was proper and in accordance with all applicable Air Force policies and procedures.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit G.

AFPC/JA recommends denial of all of the applicant’s requests indicating there is no evidence of an error or an injustice.  

The applicant makes six specific requests.  The first five are related to the central issue of the applicant being denied reenlistment.  The sixth involves a referral EPR.

AFPC/JA concurs with the recommendations of each of the five subject matter expert offices to deny the requested relief.  The applicant has not provided sufficient evidence that the denial of reenlistment or his referral performance report were unfair or unjust.  They found many facts in the record supporting the presumption that the denial of reenlistment was well within the commander’s authority and appropriately processed and that the referral performance report was accurate as written and reflected the rater’s best judgment at the time it was written.

The applicant was appropriately denied reenlistment and should not be reinstated.  The applicant’s request for back pay and allowances, service credit and the repurchase of leave sold upon separation are traditionally ancillary measures for reinstated members. 

A complete copy of the AFPC/JA evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel refutes virtually every point made by the offices of primary responsibility and argues that the advisory opinions fail to address the proof of bias in either the bar to reenlistment or the referred EPR.  Additionally, the advisory opinions confirm the applicant was denied reenlistment base on identical information which caused a prior commander to select him for reenlistment.  Bias in any form or degree raises serious concerns for overall treatment and works prejudice upon its recipient and bias is conclusively demonstrated in his submission to the Board.  The applicant provides copies of witness statements, emails and a former inspector general statement.  Additionally, the AFPC/DPSIM advisory has virtually no value.  The applicant’s EPR is “fruit of the poisonous tree” and was grounded in the evidence of bias.  Several factors leading up to the referral EPR reflect evidence of bias.  The applicant’s fitness failure was corrected by the Board.  His rebuttals to his LOC and LORs were not included in the determination of his reenlistment.  Lateness for duty was secondary to his sleep problems associated with sleep apnea.  The Article 15 was overturned by the wing commander and was an abuse of the military justice system and an indictment of the applicant’s command.  The applicant has demonstrated bias, and if bias is concluded, the EPR must be expunged.  

A complete copy of the applicant’s rebuttal is at Exhibit J.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial of the all of the applicant’s requests due to a lack of evidence of an error or an injustice.  The crux of the list of requests is his non-selection for reenlistment.  The case file does substantiate that the Staff Judge Advocate reviewed all of the documentation supporting the 19 Feb 13 reenlistment denial, reviewed applicant’s rebuttals, and determined that the supporting disciplinary actions and commander’s decision were legally sufficient.  The procedural requirements of the reenlistment process were followed and although the applicant challenged the legal sufficiency of several of the LORs and LOCs, each of the challenged documents met legal requirements.  Although the applicant disagreed with the disciplinary actions, that does not make them legally insufficient.

A complete copy of the AFPC/JA evaluation is at Exhibit K.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant’s counsel on 19 Jul 17 for review and comment within 30 days (Exhibit L).  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 to warrant reinstating the applicant to active duty in the grade of TSgt with the associated back pay, TIG and 60 days of leave credit.  We also find insufficient evidence to warrant expunging the contested EPR or his non-recommendation for reenlistment from his record.  Counsel’s contentions that there was bias in the applicant’s bar to reenlistment and referral EPR are duly noted; however, he has not provided substantial evidence which, in our opinion successfully refutes the assessment of his case by the Air Force Offices of Primary Responsibility (OPRs).  Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our decision the applicant has failed to sustain his burden of proof that he has been the victim of an error or an injustice.  In view of the above and 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’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-2015-00510 in Executive Session on 24 Aug 17 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 22 Jan 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOA, dated 4 Mar 15.
	Exhibit D.  Memorandum, AFPC/DPSOR-SEP, dated 18 Jun 15.
	Exhibit E.  Memorandum, AFPC/DPSIM, dated 21 Aug 15.
	Exhibit F.  Memorandum, AFPC/DPSOE, dated 26 Oct 15.
	Exhibit G.  Memorandum, AFPC/DPSID, dated 13 Oct 15.
	Exhibit H.  Memorandum, AFPC/JA, dated 6 Nov 15.
Exhibit I.  Letter, AFBCMR, dated 10 Nov 15.
Exhibit J.  Applicant’s Rebuttal, dated 24 Oct 16.
Exhibit K.  Memorandum, AFPC/JA, dated 18 Jul 17.
Exhibit L.  Letter, AFBCMR, dated 19 Jul 17.
	
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.