RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2010-03493 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her Article 15, dated 16 April 2009, be voided and removed from her record. 2. Her referral Enlisted Performance Report (EPR), rendered for the period 11 December 2008 through 10 December 2009, be revised; or, voided and removed from her record. _________________________________________________________________ APPLICANT CONTENDS THAT: She was unjustly accused and punished because of a minor incident regarding the completion of a patient screening form because she had been trained incorrectly by another airman who was not qualified to act as a trainer. In addition, there were no standardized training procedures and the Operating Instructions were out of date. In support of her appeal, the applicant provides copies of her Article 15 (page 2 only), appeal of nonjudicial punishment, several memorandums for record, Medical Nutrition Therapy Adult Nutrition Screening forms, medical notes, excerpt of 59th Medical Diagnostics and Therapeutics Squadron Operating Instructions, and two character witness statements. 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 senior airman as a Diet Therapy Journeyman. On 16 April 2009, the applicant’s commander offered nonjudicial punishment to the applicant for dereliction of duty, in violation of Article 92 Uniform Code of Military Justice (UCMJ). Specifically, she was accused of failing to complete a nutritional screening form for a patient at Wilford Hall Medical Center. After consulting with counsel, the applicant accepted the Article 15 proceedings and waived her right to demand trial by court-martial. She presented written matters to the commander but waived her right to personally appear before the commander. On 23 April 2009, the commander determined the applicant had committed the alleged offense. The resulting punishment consisted of reduction to the grade of airman first class (E-3) (suspended for six months), and forfeiture of $929.00 pay per month for two months. The applicant appealed, and the appeal was granted in that the forfeitures were reduced to $300.00 pay per month for two months. A legal review of the Article 15 action at two levels of command determined it was legally sufficient. The applicant received a referral EPR rendered for the period 11 December 2008 through 10 December 2009. The remaining relevant facts, extracted from the applicant’s records, are contained in the evaluations provided by the appropriate Air Force offices of primary responsibility at Exhibits C, D, and E. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request to set aside the contested nonjudicial punishment. JAJM states the applicant has not met her burden of proof showing that her commander, the appellate authority, or the attorneys who reviewed her nonjudicial punishment action acted arbitrarily or capriciously in determining that she was derelict in her duties. The failure to accurately complete the nutritional screening form had a direct impact on patient care and prevented a patient from receiving proper nutrition until the error was found. According to a nurse, when the error on the form was pointed out to the applicant, the applicant flippantly replied that they always just copy a patient’s old form when completing a new one. JAJM indicates the applicant fails to meet her burden of proof in showing the punishment imposed was unjust. The charge fairly alleged an offense under Article 92, UCMJ, in that she had a duty to fill out a new nutritional screening form, and her failure to do so affected a patient’s care. The commander did not impose the maximum permissible punishment and suspended the reduction in grade. Furthermore, after the applicant appealed, the commander considered the appeal and reduced the forfeitures by a substantial amount. It is clear the applicant’s issue is not with the process but the result. JAJM states there is no evidence the process did not work in this case, other than the applicant’s natural disagreement with the result. With her decision to concur with the commander’s decision to address the allegation in the nonjudicial forum, she necessarily vested the commander with the fact-finding power in the case. The applicant made the contended arguments to her commander and the commander did not agree with her. Neither did the appellate authority. It is JAJM’s opinion that to overturn the applicant’s punishment now would require the Board to substitute its judgment for that rendered by the individuals who had the opportunity to review all of the available facts. There may have been other factors considered by the commander in imposing punishment that are not part of the record, such as concerns over problems with completing accurate forms at the medical center ,earlier complaints about the applicant’s attitude, etc. Such a result does not meet the intent of the nonjudicial punishment set aside provision and is not warranted. The complete JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denying the applicant’s request to void the contested EPR. DPSID states the applicant did not file an appeal through the Evaluation Reports Appeal Board (ERAB); however, the ERAB reviewed this case and was not convinced that the contested report was unfair or unjust. DPSID indicates the applicant’s allegations are merely personal opinions and unsupported allegations/conjectures about the motives of her evaluators, and do not contribute to her case. She has provided factual, specific, and substantiated information from credible officials; however, this information substantiates the very issue the applicant states was unjust. There is no reasonable motive to question the contested report since the applicant did not provide convincing evidence that the evaluation was unjust or wrong, or any evidence to confirm that inequities occurred. The applicant did provide a copy of her training records and mentions about not being properly trained; however, her training records transcribed on 6 May 2008 indicate she was trained in Performing Nutritional Screening. On 26 June 2008, she also signed off on her on-the-job training records certifying she was trained in this area. The applicant has not provided supporting statements from the original rating chain officials who can give specific information about the training problem and its impact on the evaluation report. The applicant provided two character witness statements from individuals in her work section; however, both statements talk about issues that occurred outside of the evaluation reporting period. Moreover, neither of the individuals was in a position to have firsthand knowledge of the situation; therefore, they could not provide a reasonable assessment/judgment. Although the applicant may feel that the evaluators have over-stressed an isolated incident or a short period of substandard performance or conduct, the evaluators are obliged to consider such incidents, their significance, and the frequency with which they occurred in assessing performance and potential. Only the evaluators know how much an incident influenced the report; therefore, the opinions of individuals outside of the rating chain are not relevant. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on the knowledge available at the time. The complete DPSID evaluation is at Exhibit D. AFPC/DPSOE defers to the opinions by JAJM and DPSID. DPSOE states the applicant’s date of rank to senior airman, the first time she was eligible for promotion and consideration to staff sergeant (E-5) was cycle 09E5. However, she became ineligible in accordance with Air Force Instruction 36-2502, Table 1.1, Rule 20, on 23 April 2009 when she received an Article 15 for dereliction of duty. She also received a referral report for the period 11 December 2008 through 10 December 2009, which rendered her ineligible for promotion consideration to staff sergeant for cycle 10E5. The complete DPSOE evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 8 April 2011, for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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 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 AFBCMR Docket Number BC-2010-03493 in Executive Session on 28 June 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-03493: Exhibit A. DD Forms 149, dated 4 Sep 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 27 Oct 10. Exhibit D. Letter, AFPC/DPSID, dated 25 Feb 11. Exhibit E. Letter, AFPC/DPSOE, dated 7 Mar 11. Exhibit F. Letter, SAF/MRBR, dated 8 Apr 11.