RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02766

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His Enlisted Performance Report (EPR), rendered for the period 1 Apr 13 through 31 Mar 14, be declared void and removed from his military personnel records.

2.  His promotion line number to the grade of Technical Sergeant (TSgt) for promotion cycle 13E6 be reinstated.

APPLICANT CONTENDS THAT:

There was a violation of his Fifth Amendment and UCMJ rights.  Also there was misuse of the Control Roster and an unfair rating on the contested EPR.

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

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of TSgt, with a date of rank of 1 Oct 15.

According to a letter provided by the applicant, dated 6 May 14, the Pacific Air Forces Inspector General (PACAF/IG), noted the following:

On 1 Mar 14, the 374 AW Inspector General received allegations of information, from the applicant, that was obtained in violation of Article 31, UCMJ, that were used for a Letter of Reprimand (LOR) an placement on the control roster.  On 2 Apr 14, the 374 AW/IG office conducted a complaint analysis into the applicant’s allegations and it was determined that the 374 MXG/CC did not violate any laws, policies or regulations in issuing the LOR.  As a result, the allegations were dismissed and the case was closed. 

On 8 Apr 14, the applicant appealed the complaint disposition and additionally alleged that AFI 36-2907, Unfavorable Information File (UIF) Program, para. 2.2.3, had been violated and that there was a conflict of interest because the 374 AW/JA advised the 374 MXG/CC and 374AW/IG.

After a thorough examination of all the facts, the IG concluded the Article 31 did apply to the applicant.  The Yokota AB Office of Special Investigations (OSI) interviewed the applicant as a witness in a sexual assault investigation which he was not the subject.  When the applicant stated to OSI that he returned home around 0300, he was not a suspect of a crime at the time and was not questioned further regarding violation of the Liberty Policy.  The statement made by the applicant that demonstrated violation of the Liberty Policy was not given in violation of Article 31.  Even, if OSI suspected the applicant of a curfew violation when he made the statement it was not used against him as evidence in a court-martial.  However, the IG concluded the applicant’s admission that he returned home around 0300 may be used for a LOR even if it was obtained in violation of Article 31 and that the commander’s actions were within his discretion.

On 7 Dec 15, AFPC/DPSOE administratively corrected the applicant’s records to reflect he was promoted to the grade of TSgt, effective 1 Oct 15.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial.  There is insufficient evidence to determine if the applicant unjustly received a LOR, UIF, and Control Roster.

AFI 36-2907, paragraph 3.5 states, “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 Unfavorable Information File (UIF) or Personal Information File. Include the member's written acknowledgment and any documents submitted by the member.” 

After careful review, the Commander was within his authority to administer a LOR and file it in the applicant’s UIF.  However, without the completed LOR and AF Form 1058, DPSIM cannot determine if the procedures were completed IAW the AFI guidance.

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

AFPC/DPSID recommends denial of the applicant’s request to void the contested EPR indicating 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, 2 Jan 13.  Additionally, the applicant has not provided compelling evidence to show that the report was unjust or inaccurate at the time it was written.  

The applicant received a referral EPR for violating curfew policy, receiving an LOR from the Maintenance Group Commander, and being placed on a Control Roster.  In this case, the applicant violated curfew for which he received an LOR/UIF.  The rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator.  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 given the incident.  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" in order to ensure that the report was given a fair consideration in accordance with the established intent of the current Officer and Enlisted Evaluation System in place.   Based upon the presumed sufficiency of the LOR and Control Roster as served to the applicant, its mention on the contested report was proper and in accordance with all applicable Air Force policies and procedures.  This element of the applicant's appeal to be without merit.

The applicant also states that the report should reflect the appropriate evaluation rating.  IAW AFI 36- 2406, paragraph 10.2.4, Prohibited Requests –“The board will not consider nor approve requests to: 10.2.4.6. Change an evaluator's ratings or comments.” 

Paragraph A2.3., states, “Statements from the rating chain should cite important facts or circumstances that were unknown when the evaluators signed the report; Detail the error or injustice; Explain how and when it was discovered; Include the correct information; Relate to the contested reporting period; Address the allegations and substantially challenge or disprove comments or ratings in the report.”  Therefore, statements from the original evaluators will need to come online addressing the reason(s) for the change(s) along with a corrected substitute report.

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 EPR.  It is determined that 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 burden of proof is on the applicant and he 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.

Enlisted Promotions recommends denial of the applicant’s request to reinstate his promotion to TSgt indicating the appropriate subject matter experts (SMEs) for EPR and Control Roster issues have reviewed the case and recommend denying the removal of the referral EPR and the Control Roster action.  Therefore, a correction to rank or promotion eligibility is not authorized.

The applicant was considered and tentatively selected for promotion to TSgt during promotion cycle 13E6.  He received promotion sequence number (PSN) 4471.0 which would have incremented on 1 May 14; however, when he received the 31 Mar 14 referral EPR, his line number was removed IAW AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, Table 1.1, Rule 22.  He remained ineligible for promotion consideration to TSgt for cycle 14E6 due to the referral EPR.

A complete copy of the Enlisted Promotions evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation were forwarded to the applicant on 11 Mar 16 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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.  After a thorough review of the available evidence and the applicant’s complete submission, we are not persuaded his records should be corrected to reflect the removal of the LOR/UIF and reinstatement of his promotion line number to TSgt.  In this respect, we agree with the opinions and recommendations of DPSID and Enlisted Promotions respectively, and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof of the existence of either an error or injustice.  With respect to the applicant’s request to void and remove the contested EPR, we note this Board is the highest administrative level of appeal within the Air Force.  As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction.  The Air Force office of primary responsibility has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued.  In view of this, we find this portion of the application is not ripe for adjudication at this level as there exists a subordinate level of appeal that has not first been depleted.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this portion of the application.

THE BOARD DETERMINES THAT:

The applicant be notified that all available avenues of administrative relief have not been exhausted; and the application will only be reconsidered upon submission of documentary evidence indicating that said avenues of administrative relief have been exhausted.

The following members of the Board considered AFBCMR Docket Number BC-2015-02766 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-2015-02766 was considered:

	Exhibit A.  DD Form 149, dated 21 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIM, dated 15 Sep 15.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 27 Feb 16.
	Exhibit E.  Memorandum, AFPC/DP3SP, dated 9 Mar 16.
	Exhibit F.  Letter, SAF/MRBR, dated 11 Mar 16.

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.