RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02847

	COUNSEL: YES
	
	HEARING: NO

APPLICANT REQUESTS THAT:

1. His Letter of Reprimand, dated 16 Apr 14, and subsequent Unfavorable Information File (UIF) be removed.

2. The referral comments in his Officer Performance Report (OPR) rendered for the period of 18 May 13 thru 17 May 14 be invalidated and the OPR corrected to reflect no LOR was ever issued.

APPLICANT CONTENDS THAT:

Through counsel, he was wrongfully issued a LOR and UIF during a deployment to Afghanistan on or about 8 Mar 14, which caused his OPR to be referred.  He violated no policy, was not derelict in any duty and was the only one of thousands of similarly situated airmen to receive a LOR for use of a computer game that was found on computers throughout the theater of operations.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is an Air Force captain.  

According to the documentation provided by the applicant:

	 On 16 Apr 14, he was issued a LOR by the wing commander in direct violation of Aircraft Read File 13-26 (ARF13-26) and Article 92 of the Uniform Code of Military Justice, Failure to Obey an Order, in response to a Commander Directed Investigation (CDI), for using his mission computer to access a game during flight on or about 8 Mar 14.

	On 19 Apr 14, the applicant provided a response to the LOR in his behalf and on 21 Apr 14, the wing commander determined the LOR would remain in effect and be filed in the applicant’s UIF.

	On 4 Jun 14, according to the documentation provided by the applicant, he filed a complaint to the Air Force Inspector General’s Office (SAF/IGS) for alleged abuse of authority by his wing commander and on 25 Sep 14, SAF/IGS determined the available evidence did not substantiate any wrongdoing or misconduct on the part of the wing commander and the LOR issued to the applicant was within his authority.

On 16 Jun 14, the applicant was issued a referral OPR by his additional rater with the comment, “displayed poor flight discipline and placed computer networks at risk, resulting in an LOR,” and on 19 Jun 14, the reviewer “carefully considered” the applicant’s comments and concurred with the referral OPR.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATIONS:

AFPC/DP2SSM recommends denying the applicant’s request to remove the LOR and UIF from his official record due to insufficient evidence of injustice.  A CDI found the applicant in violation of Article 92 of the UCMJ for Failure to Obey an Order and Dereliction in the Performance of Duties. The applicant provided a sworn statement during the CDI, that he did access the file during a mission on SIPRNET.  IAW AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 4.1.3, the commander was presented evidence from the CDI to proceed with administrative action, to which resulted in a LOR, dated 16 Apr 14 and UIF. The complete advisory is at Exhibit C.

AFPC/DP2SPE recommends denying the applicant’s request to invalidate and correct his referral OPR to show that no LOR was issued to him. The applicant filed an appeal through the Evaluation Reports Appeals Board (ERAB) and it was disapproved.  An evaluation report is considered to represent the rating chain's best judgment at the time it is rendered. 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.  The applicant has not provided compelling evidence to show that the report was unjust or inaccurate at the time it was written.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent copies of the Air Force evaluations to the applicant on 13 Jul 18 for comment (Exhibit E), and the applicant replied on 9 Aug 18.  Through counsel, the applicant contended his UIF and Referral OPR are an injustice due to failure of his upper management and requests the Board to disregard the advisory opinions that bear no resemblance to either justice or fairness.  The applicant provided a letter from his counsel and new supporting documentation to include copies of three separate OPRs and a Personal Data RIP.   The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SPE and AFPC/DP2SSM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-02847 in Executive Session on 22 Aug 18:

	Chair
	Member
	Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 14 Jun 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/ DP2SSM, dated 4 Oct 16.
Exhibit D:	Advisory opinion, AFPC/ DP2SPE, dated 8 Oct 17.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Jul 18.
Exhibit F:	Applicant’s Response to the Advisory Opinions, dated 9 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.