RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02660

						COUNSEL:  

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  Her Letter of Reprimand (LOR), dated 13 Jan 14, and Unfavorable Information File (UIF) be declared void and removed from her military personnel records.

2.  Her Enlisted Performance Report (EPR), rendered for the period 2 Jun 13 through 15 Apr 14, be declared void and removed from her military personnel records.

3.  Her promotion to the grade of Master Sergeant (MSgt/E-7) be reinstated.

APPLICANT CONTENDS THAT:

She received an improper LOR/UIF, withholding of promotion to MSgt, and an inaccurate and unjustified EPR based on alleged misconduct which was later expunged under Ohio law. 

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

STATEMENT OF FACTS:

On 31 Jul 96, the applicant entered the Regular Air Force.

On 13 Jan 14, the applicant received a LOR for being convicted by the Fairborn Municipal Court in Fairborn, Ohio for disorderly conduct and the applicant’s commander decided to file the LOR in her Personal Information File (PIF)/Unfavorable Information File (UIF).

On 15 Apr 14, the applicant’s rater notified her that he was referring the EPR with the closeout date of 15 Apr 14 in accordance with AFI 36-2406, Military Performance Evaluations, paragraph 1.10, indicating the report contained comment(s)/rating(s) that made the evaluation a referral.  Specifically, the report was referred due to:  Section III, items 1 and 2, pertaining to her failure to maintain duty performance, supervisory, and leadership standards commensurate with rank, and failure to maintain acceptable conduct on/off-duty.  On that same date, the applicant acknowledged receipt of the referral report.  On 18 Apr 14, the applicant provided rebuttal comments for review and consideration.

On 31 Jul 16, the applicant retired from active duty, effective 1 Aug 16, and was credited with 20 years and 1 day of total active service. 

The remaining relevant facts pertaining to this application are contained in the memorandum 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 of the applicant’s request to remove the LOR dated 13 Jan 14 and UIF from her record indicating there is a lack of supporting evidence regarding establishment of the UIF.

In Accordance With (IAW) AFI 36-2907, Unfavorable Information File Program, paragraph 3.5, “Administer a counseling, admonition, or reprimand, verbally or in writing.  If written, the letter states: What the member did or failed to do, citing specific incidents and their dates, what improvement is expected, that further deviation may result in more severe action.  That the individual has 3 duty days to submit rebuttal documents for consideration by the initiator.  The person who initiates the RIC, LOC, LOA, or LOR has 3 duty days to advise the individual of their final decision regarding any comments submitted by the individual.  The person who initiates a RIC/LOC, LOA, or LOR may send it to the member's commander or superiors for information, action, or for their approval for file in the UIF or PIF.  Include the member's written acknowledgment and any documents submitted by the member.”  After careful review, DPSIM determined the evidence presented was completed properly and the correct procedures were followed to administer the LOR dated 13 Jan 14. 

IAW AFI 36-2907, paragraph 1.3.1, “For enlisted members, commanders refer optional documents LOAs, LOCs, or LOR to the offending member along with an AF IMT 1058 before establishing an UIF.”  After careful review, DPSIM cannot support relief to the applicant’s claim since there was no evidence to support the AF IMT 1058 because it was not provided.

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

AFPC/DPSID recommends denial of the applicant’s request to remove the contested EPR indicating there is no evidence of an error or an injustice.  The applicant did not file an appeal through the Evaluation Reports Appeals Board (ERAB) under the provisions of AFI 36-2406, Officer and Enlisted Evaluation Systems, dated 2 Jan 13.  Additionally, the applicant has not provided substantiating documentation or evidence to prove the referral EPR was rendered unfairly or unjustly.  

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Furthermore, 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 the necessary information/support from any rating official on the contested EPR.  The applicant has not provided an explanation as to how any of the evaluators were hindered from rendering a fair and accurate assessment of the applicant's performance and has not substantiated that the contested EPR was not rendered in good faith by all evaluators based on knowledge available at the time. 

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

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  With respect to the LOR and UIF, the applicant was issued an LOR for having been convicted of Disorderly Conduct in the Municipal Court in violation of the Ohio Revised Code (ORC).  The applicant’s response to the LOR does not challenge the conviction for this offense.  The applicant alleges that her commander erred in the administration of the LOR and UIF entry indicating her commander wrongfully and improperly qualifies her as having a “conviction” for Disorderly Conduct when at no time was she convicted by the Municipal Court.  However, on 26 Nov 13, the applicant was convicted for Disorderly Conduct by the Fairborn Municipal Court and sentenced to pay a fine.  Specifically, the court document reveals the applicant entered a plea of no contest after which the judge found her GUILTY of Disorderly Conduct, which offense constitutes a minor misdemeanor under the laws of Ohio.  Because the applicant’s conviction for a minor misdemeanor constitutes an offense for expungement purposes and because she did not have any qualifying convictions to preclude expungement relief, the applicant was eligible for and did succeed in having her conviction sealed.

The applicant contends that the offense of Disorderly Conduct constitutes a minor misdemeanor and, as a consequence, does not qualify as a “conviction” at all.  However, ORC 2953.13(A), para. 2, reveals that a conviction for a minor misdemeanor “For purposes of, and except as provided, this division” does not qualify as a conviction in that it cannot be used to render an individual ineligible for record sealing.

ORC 2953(A) states, “an eligible offender cannot be one who has not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony conviction and one misdemeanor conviction….”  Consequently, the applicant’s argument that she was not convicted of disorderly conduct simply because ORC 2953.31(A) does not consider it a conviction for the limited purpose of determining eligible offender status, lacks merit.

The commander’s reference to the Disorderly Conduct conviction in the LOR indicates he considered the facts and circumstances of the offense – namely that the applicant (in pleading no contest) admitted to the truth of all the facts in the charging document and/or related by the prosecutor in support of her GUILTY finding by the judge.  Although the application does not reveal what these admitted facts are, they were sufficient to satisfy the elements of the offense of Disorderly Conduct.  

The applicant has not met her burden in establishing any error or injustice, therefore, AFPC/JA are only left with significant allegations from which the applicant received a Disorderly Conduct conviction.

The applicant’s arguments that “A plea of No Contest is not an admission of judicial guilt” and “It is simply a recognition by an individual pending charges before a court that they will submit to the outcome the court determines appropriate” is unpersuasive because it fails to recognize that a plea of No Contest requires an “an admission of the truth of the facts alleged in the complaint” that the judge or magistrate may make a finding of guilty from the explanation of the circumstances of the offense. Therefore, the applicant’s contention that the conviction and subsequent LOR, UIF, promotion action, and referral EPR were based upon “alleged" misconduct is equally without merit.

With respect to the applicant’s request for reinstatement of promotion, while the applicant contends that her command wrongfully allowed her promotion to be withheld even after the expungement of her arrest and conviction, it does not change the fact that she (while represented by counsel) admitted to the truth of allegations which satisfied the elements of the Ohio Disorderly Conduct statute and justified her LOR in the first place.  Moreover, the order granting the sealing of conviction records was not based upon the judge finding that there were any constitutional violations or that there were any other errors with respect to the applicant’s admissions leading to her conviction.

Additionally, although a plea of no contest does not involve the waiver of the right to appeal, the applicant chose not to appeal her conviction.  Consequently, the applicant cannot argue that the sealing of her conviction record, while having certain legal effects under Ohio law, prevented the Air Force from recognizing the fact that her plea of no contest constituted an admission by the respondent of the truth of the facts alleged.  Neither can such sealing serve as proof that the Air Force administrative actions taken, in part based on such conviction, amounted to an error or injustice. 

Lastly, with respect to the referral EPR, AFPC/JA finds no error or injustice in any of the actions administered by her command for the reasons already discussed.

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

AFPC/DP3SP recommends denial of the applicant’s request for reinstatement of promotion to the grade of MSgt indicating the commander is in the best position to evaluate the applicant’s potential and eligibility for promotion, and acted within his authority when he decided to nonrecommend the applicant for promotion to MSgt.  

The applicant was considered and tentatively selected for promotion to MSgt during the 13E7 promotion cycle.  She received promotion sequence number (PSN) 1370.0 which would have incremented on 1 Dec 13; however, on 25 Nov 13, her promotion was placed in withhold due to her being under civil court charges.  

On 21 Jan 14, the applicant was nonrecommended for promotion by her commander due to her civil court conviction and substandard performance.  Subsequently, her pending line number was removed in accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, Table 1.1, Rules 4 & 8.  Commanders have the authority to nonrecommend members for promotion whom they feel are not ready to assume the duties and responsibilities of the next higher rank.  

A complete copy of the AFPC/DP3SP evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel argues that the language used to describe the basis for the applicant’s promotion non-recommendation paints an erroneous and misleading picture of the applicant.  Counsel states, there is no credible evidence to substantiate the applicant had any substandard performance, and she pled no contest to a minor misdemeanor charge of disorderly conduct which is far different than a "civil court conviction" and is the lowest form or classification of offense under Ohio law.  The maximum penalty was a fine of $100 and no possibility of confinement.  The applicant’s promotion non-recommendation was based solely on this minor misdemeanor no contest plea.

In response to the DPSIM Advisory, procedurally, the LOR was administered incorrectly as it merely states what action a court took.  The LOR fails to state specifically what the applicant did or failed to do, it fails to cite specific incidents and their dates, and it fails to provide any guidance on what improvement is expected.  Given the timing of the LOR (months after the alleged actions constituting the basis of the LOR), it was not designed to correct any aberrant behavior of the applicant or to warn her of the consequences but simply to serve as a basis for the adverse actions that followed.  Furthermore, since the only reason she received the LOR was because of the court’s action, once the offense of minor misdemeanor for disorderly conduct was expunged, the underlying basis for the LOR was no longer in existence.  The LOR should be removed from her record as the basis for the LOR no longer exists and has not since the date of the expungement.  If the commander was going to wait until the court action to impose the LOR, he should out of fairness and justice wait until all court actions are complete.  Had he done this, no basis for the LOR would have existed.

Additionally, the DPSID advisory states the EPR should not be removed based upon a lack of corroborating evidence.  Counsel notes that on or about 6 Jun 16, the applicant submitted an EPR appeal through the ERAB system and request the Board access her ERAB appeal for a full discussion and justification of why her EPR should be voided.  

Lastly, AFPC/JA makes the argument for the applicant that she did not admit to the underlying facts and circumstances of the alleged offense when they quote from ORC 2937.07.  In this provision it clearly states that defendants need not be asked for an explanation of the circumstances of the offense.  In fact, the applicant was not asked at any time for an explanation of the circumstances of the offense.  Likewise, the statute quoted by AFPC/JA makes clear that a plea of no contest to a minor misdemeanor offense can never be used in any subsequent civil or criminal action or proceeding as an admission of the facts and circumstances.  In essence, the applicant never had the opportunity to explain her side of the alleged events and her plea of no contest cannot be considered an admission of the underlying facts.

A complete copy of the applicant’s counsel response is at Exhibit H.

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, including the applicant’s counsel rebuttal to the Air Force evaluations, in judging the merits of the case; however, we do not find that she has been the victim of an error or injustice.  With respect to the applicant’s request to void and remove the contested EPR, despite the fact that DPSID indicates she has failed to file her appeal through the ERAB, we note the applicant has since retired from active duty; therefore, seeking administrative relief from the ERAB to remove the contested EPR is no longer an available option. In this respect, we note counsel’s arguments in rebuttal; however, we did not find counsel’s arguments sufficient enough to override the rationale expressed specifically by the AFPC/JA office.  Therefore, we accept the recommendation made by AFPC/JA and adopt the rationale expressed as the primary basis for our conclusion that the applicant has not been the victim of error or injustice.  Lastly, with respect to the applicant’s remaining requests to remove the contested LOR/UIF and to reinstate her promotion to the grade of MSgt, we note counsel’s arguments in rebuttal that the LOR was administered incorrectly, it was not designed to correct any aberrant behavior, and once the offense was expunged, the underlying basis for the LOR no longer exists.  However, we do not find the applicant has provided sufficient evidence to show that the imposing commander abused his discretionary authority with regard to the submitted LOR, or that the applicant’s substantial rights were violated during these processes.  As such, we accept the recommendations made by AFPC/JA, AFPC/DPSIM and AFPC/DP3SP and adopt the rationale expressed in the advisory opinions as the primary basis for our determination that the applicant has not been the victim of error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting any of 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-2015-02660 in Executive Session on 16 Aug 16 under the provisions of AFI 36-2603:

					 , Panel Chair
					 , Member
					   , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02660 was considered:

	Exhibit A.  DD Form 149, dated 19 Jun 15, w/atchs.
	Exhibit B.  Applicant Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIM, dated 15 SEP 15.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 6 Apr 16.
	Exhibit E.  Memorandum, AFPC/JA, dated 20 Apr 16.
	Exhibit F.  Memorandum, AFPC/DP3SP, dated 13 May 16.
	Exhibit G.  Letter, AFBCMR, dated 20 May 16.
	Exhibit H.  Letter, Counsel, undated.