RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-01029
		INDEX NUMBER:  111.02; 126.02; 131.01

		COUNSEL:  None

		HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR), rendered for the period 7 Oct 95 through 6 Oct 96, be declared void and removed from her records; she be provided supplemental consideration for promotion; and that her reenlistment eligibility (RE) code of 2C be changed to allow her to enlist in the Air National Guard.

APPLICANT CONTENDS THAT:

She was in school, doing above and beyond in her job performance, and had not had any recent problems due to discipline or any negative actions.  She was notified of the referral EPR and was told that there was nothing more she could do.  The incident was rushed.

In support of her appeal, the applicant provided a copy of the response to her Inspector General (IG) complaint, a copy of a list of her decorations, and a copy of the contested report.  Applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force (RegAF) on 7 Feb 94, in the grade of E-1.  She was promoted to the grade of E-3, effective 7 Jun 95. 

Applicant's EPR profile follows: 

     PERIOD ENDING                            EVALUATION

	6 Oct 95		3
   *	6 Oct 96		3

* Contested report

On 11 Aug 97, Applicant was notified that her commander was recommending she be discharged with service characterized as general for minor disciplinary infractions.  Specifically, between on or about 4 May 97 and 31 May 97, on divers occasions, she obtained long distance telephone services from AT&T in the amount of about $35.31 for which she received an Article 15; on or about 26 Jun 97, she parked in an undesignated area, for which she received a traffic ticket and a Letter of Counseling (LOC); between on or about 23 Apr 97 and 29 Apr 97, she obtained long distance telephone services from AT&T in the amount of about $17.81 for which she received an Article 15; on or about 7 Jan 97, the first sergeant was notified that she had written two checks that were returned for insufficient funds, and while she was TDY to Saudi Arabia, she was counseled several times on her conduct for which she received a letter of reprimand (LOR); on or about 16 Mar 97, she was derelict in performing her duties for which she received an LOR; on or about 2 Feb 96, she failed to go to her appointed place of duty for which she received an LOR; and on or about 5 Aug 95, she did not report for duty in her BDUs as instructed and was noted by three senior NCO’s and a commander for her “bad attitude” and lack of response when greeted by a chief master sergeant for which she received an LOR.  On 14 Aug 97, Applicant acknowledged receipt of the notification.  She consulted counsel and submitted statements for consideration.  Applicant’s case file was found legally sufficient and on 19 Aug 97, the commander directed that she be discharged for minor disciplinary infractions with a general discharge, without probation and rehabilitation.  She was subsequently discharged on 21 Aug 97 with a general discharge by reason of misconduct.  She received an RE code of 2B and a separation code of HKN.  She had served 3 years, 6 months and 15 days on active duty.

As a result of the favorable consideration of her case by the Air Force Discharge Review Board (AFDRB) on 8 Apr 99, Applicant’s discharge was upgraded to honorable; the reason for her separation was changed to “Secretarial Authority;” her separation code was changed to JFF; and her RE code was changed to 2C.

AIR FORCE EVALUATIONS:

The Military Justice Division, AFLSA/JAJM, reviewed this application but made no recommendation because no military justice question was at issue.  While the IG report questioned the hastiness of the investigation into the applicant’s offenses, it does not question the legal sufficiency of either Article 15.  The IG report indicates the illegally charged calls which formed the basis for the second Article 15 were not known at the time the first Article 15 was offered.  The commander was acting within his authority to give the second Article 15 for the acts charged even though they arguably fell within the same time as the acts that gave rise to the first.  Whether or not the IG felt 
the applicant was punished twice for the same offense, it was within the discretion of the commander to impose such punishment.  JAJM’s evaluation is at Exhibit C.

The Enlisted Promotion and Military Testing Branch, AFPC/DPPPWB, recommended denial.  An E-3 is eligible for promotion to E-4 at 36 months time in service and 20 months time in grade or 28 months time in grade, whichever occurs first.  The immediate commander must recommend promotion in writing before the airman can assume the grade.  The applicant was ineligible for promotion as a result of the referral EPR closing 6 Oct 96.  As a result of the administrative discharge action on 11 Aug 97, the applicant was also ineligible for promotion.  She also became ineligible for promotion on 30 Jun 97, as a result of Article 15 punishment, which consisted of a suspended reduction until 29 Dec 97.  Assuming the referral EPR is voided and the second Article 15, which vacated the suspension, is also voided, it is extremely doubtful the commander would have approved promotion to E-4.  Although the applicant met the time in grade requirement on 7 Feb 97, based on her record and the reasons which formed the basis for her involuntary separation, DPPPAWB does not believe she would have been approved for promotion to E-4.  Their complete evaluation is at Exhibit D.

The Special Programs and BCMR Manager, AFPC/DPPAES, reviewed this application and indicated that the applicant’s RE code is correct.  RE code 2C is given to airmen who are involuntarily separated with an honorable discharge (Exhibit E).

The BCMR Appeals and SSB Section, AFPC/DPPPAB, recommended denial.  Air Force policy states an evaluation report is accurate as written when it becomes a matter of record.  To effectively challenge a report, it is necessary to hear from all members of the rating chain, not only for support but also for clarification/explanation.  The applicant did not provide supporting documents.  The contested EPR states the applicant had verbal and written counseling.  Her rebuttal to the referral report also mentions tardiness and financial irresponsibility.  Since her first and only other report was marked very much like the referral report, with comments alluding to similar behaviors, it is evident that her rating chain properly documented her duty performance and behaviors.  DPPPAB concurred with the opinions from JAJM, DPPPWB, and DPPAES (Exhibit F).

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 1 Oct 99, for review and response (Exhibit G).  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 probable error or injustice.  The applicant’s contentions are duly noted; however, we do not find these assertions sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility.  We noted that the IG appears to corroborate the possibility of impropriety in the issuance of the second Article 15, it was within the discretion of the commander to impose punishment.  Moreover, it appears the applicant was afforded all rights to which she was entitled.  After reviewing the facts and circumstances of this case, we find no evidence that the applicant's substantial rights were violated; that the information used as a basis for her separation was erroneous; that the discharge action was an abuse of discretionary authority; or that the contested report was an inaccurate assessment of her performance during the pertinent rating period.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 18 January 2000, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Apr 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 28 Jul 99.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 11 Aug 99, w/atchs.
    Exhibit E.  Letter, AFPC/DPPAES, dated 8 Sep 99.
    Exhibit F.  Letter, AFPC/DPPPAB, dated 16 Sep 99.
    Exhibit G.  Letter, SAF/MIBR, dated 1 Oct 99.