RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03501 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Enlisted Performance Report (EPR), closing 1 October 2007, be voided and removed from his records. 2. His Enlisted Performance Report (EPR), closing 31 December 2007, be voided and removed from his records. (ADMINISTRATIVELY CORRECTED) 3. AF Form 2096, Classification/On-The-Job Training Action, be removed from his records. 4. He be reinstated into the Air Force at the highest grade held, E-7, master sergeant. 5. As an alternative, his Reenlistment Eligibility (RE) code of 2A (reenlistment denied by Headquarters Air Force for quality reasons) be changed to allow him to reenlist. 6. All the individuals who falsified documents against him be reprimanded for their actions. 7. He receive the full separation pay as indicated on his DD Form 214, Certificate of Discharge or Release from Active Duty. 8. By amendment at Exhibit I, he be given a military retirement at the grade of E7, the grade held at the time of separation. ________________________________________________________________ APPLICANT CONTENDS THAT: In two separate applications along with a 2-page statement and 12-page statement, the applicant outlines how he was the victim of unfair treatment and as a result, ultimately discharged from the military. Among the major points he makes are: His supervisor backdated his EPR to close out on 1 October 2007 and made false official statements regarding the feedback statement. His supervisor falsified the EPR that closed-out on 31 December 2007. The EPR does not reflect the correct Air Force Specialty Code (AFSC). Additionally, it incorrectly reflects his duty title. His supervisor also falsified the AF Form 2096. The document states that he was unavailable to sign; however, there is no record to substantiate that claim. He was illegally removed from his duties as a Military Training Leader, as the removal was not approved by the Numbered Air Force, as required. He was disqualified from returning to his previous career as a Security Forces (SF) member. The SF leadership inappropriately considered his civilian conviction and used that to keep him from returning to the career field. The Military Personnel Flight (MPF) prevented him from retraining. He submitted a retraining package to the Office of Special Investigations (OSI) and was told that he could not submit another retraining package while submitting the package to OSI. He was later notified there were only three job openings and that he was not qualified for them. In support of his appeal, the applicant provides two personal statements, copies of the contested reports, e-mails, a response from the Inspector General (IG) and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is former member of the Regular Air Force who enlisted on 2 April 1997. On 6 January 2007, the applicant was charged with driving under the influence (DUI); he pled guilty on 7 May 2007. On 10 May 2007, he received a Letter of Reprimand (LOR) with an Unfavorable Information (UIF) for violation of Article 92, Dereliction of Duty, Uniform Code of Military Justice. The commander reviewed his rebuttal and determined the LOR would be placed in the UIF. The applicant was subsequently removed from his duties as a Military Training Leader for unsuitability. He could not be placed back into his previous career field of Security Forces due to his civilian DUI conviction. On 27 June 2008, a formal training clerk advised him there were three career fields available for retraining into for technical sergeants. He was not qualified for two of the career fields and disqualified from the third as his “disqualified for cause” prevented him from attending schools exceeding 8 weeks. On 1 July 2008, AF IMT 100, Request and Authorization for Separation, noted the applicant was authorized half separation pay based on his SPD code. He was honorably separated on 1 September 2008 and credited with 11 years and 5 months of active duty service. On 4 September 2008, the applicant received a separation payment of $19, 189.60. On 15 June 2009, AETC/IG responded to applicant’s complaint regarding the personnel actions taken against him, which led to his separation. The IG found one allegation, while it did not violate the instruction, called into question the clarity of the instruction that was forwarded to the OPR. The other allegations were dismissed. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are at Exhibits C – E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial. The applicant did not submit an appeal through the Evaluation Reports Appeals Board. He is no longer active duty and does not have access to that system. The applicant contends the EPR with the close-out date of 1 October 2007 was falsified by his chain of command by back dating a change of reporting official (CRO) personnel action. Despite numerous documents provided by the applicant, none show any evidence the wing commander directed any such action. As the IG report provided by the applicant states, even if the rating chain pursued a backdated CRO evaluation, it is not improper. The applicant’s commander is given the latitude to determine the rating chain for assigned personnel. In the absence of substantiating evidence, the CRO action by the rating chain was proper. The applicant also contends the EPR contained a false statement regarding the recording of feedback. He provides two feedback forms, one dated 12 February 2007, which was marked “initial.” He also provides a feedback marked “midterm,” which was dated 16 October 2007. The applicant contends this document proves the CRO was backdated. However, that feedback was after the 1 October 2007 reporting period. As previously stated, the change of the reporting period was not improper, thus the statement of the EPR “Official feedback not documented due to supervisory oversight” is appropriate. AFI 26-2406 notes, 120 days of supervision is required to write a Directed by Commander Report to document significant improvement to a report. In this case, the report with a closeout date of 31 December 2007 did not meet this requirement and violated the applicable regulations. Based on that violation, that report has been removed from the applicant’s permanent evaluation record. An evaluation report is considered to represent the rating chains best judgment at the time it is rendered. Only strong evidence to the contrary warrants correction. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at that time. The complete DPSID evaluation is at Exhibit C. AFOSI provides the following for information purposes. On 8 November 2007, a Determination of Availability (DOA) was submitted for the applicant. The DOA is the first step in the AFOSI application process and requires the Military Personnel Flight to conduct a records review to determine if the applicant is eligible to retrain. On 12 October 2007, the Employments Section verified he was eligible for retraining. Based on the approved DOA, an investigation was conducted by an AFOSI Detachment. Based on personal conduct and personnel actions which caused removal of the applicant’s Security Forces AFSC, a determination was made he was not a suitable candidate for AFOSI duty. This decision required an additional review by the AFOSI Command Applicant Review Board which upheld the decision to disqualify him from AFOSI applicant processing and retraining actions. The complete AFSOI evaluation is at Exhibit D. AFPC/DPSIDC recommends denial. On 25 October 2007, a disqualification case was opened on the applicant requesting withdrawal of his special identifier as a Military Training Leader based on his civilian conviction. The reason for withdrawal was failure to maintain mandatory AFSC qualification requirements. Only AFSC disqualification for substandard duty performance requires airman’s signature on the AF From 2096. Therefore, the applicant’s signature was not required in this case. The applicant’s ineligibility to return to his prior AFSC, 3P0X1, Security Forces was based on his civilian conviction. The AFSC specialty description at the time noted: entry, award and retention requirement of never been convicted by a civilian court of a Category 1, 2 or 3 offense, nor exceeded the accepted number of Category 4 offenses. The applicant’s disqualification case was approved on 22 January 2008. The case was referred back to his base to notify him to apply for retraining through Virtual MPF. There is no evidence to suggest the applicant was not properly disqualified from his AFSC. The complete DPSIDC evaluation, with attachments, is at Exhibit E. AFPC/DPSOA recommends denial. The applicant was discharged on 1 September 2008 with an honorable discharge and a $79,316.02 severance because he did not have an AFSC commensurate with his grade and was forced to separate on his Date of Separation. On 21 December 2007, the applicant’s primary AFSC, 3P0X1, Security Forces and his Control AFSC, 8B100, Military Training Leader, was changed to 9A100, Awaiting Retraining – Reasons within Control. He pursued retraining into the AFOSI through their organization. The applicant was not allowed to pursue additional retraining while pursuing OSI as only one position could be filled at a time. The standard operating procedure is to let the member request retraining into OSI first and then pursue other options. The applicant applied for retraining through DPSOA in March 2008 and was disapproved in June 2008 after his application met three retraining boards and was not selected. The completed DPSOA evaluation, with attachments, is at Exhibit F. AFPC/DPSOE provides the following information. The applicant was eligible for promotion consideration beginning with cycle 08E7. However, he became ineligible when he was disqualified from his AFSC. Although he received a referral EPR for the period of 14 December 2006 through 1 October 2007, he received a non-referral with a close-out date of 31 December 2007, which is the promotion eligibility cut-off date. This EPR rendered him eligible for promotion consideration. However, removal of his report with the 31 December 2007 close-out rendered him ineligible for promotion consideration as the 1 October 2007 report became the top report for cycle 08E7. The completed DPSOE evaluation is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant, through counsel, submits a 7-page statement and a 1-page statement regarding the Air Force advisories. Counsel alleges the actions taken by the commander for the applicant’s DUI were appropriate; however, the additional actions against the applicant nearly a year later ultimately forced him out of the Air Force. The applicant’s complete response, with attachments, is at Exhibit I. ________________________________________________________________ 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. After careful consideration of the applicant’s request, evidence of record and counsel’s response, we find insufficient evidence of error or injustice to warrant corrective action. As stated by DPSID, there was no evidence submitted to substantiate the applicant’s contentions that his command demanded a back dated change of reporting official to justify giving him a referral EPR. The governing instruction gives the commander latitude to determine the rating chain of personnel. There is no evidence the performance report was not rendered in good faith by all those in the rating chain. With regard to the EPR with the close-out date of 31 December 2007, the applicant’s records have been administratively corrected to remove this report. Other than this administrative correction, no further action is warranted. 4. The applicant’s request to remove the AF Form 2096 is not favorably considered. The applicant was withdrawn from his AFSC due to his civilian conviction for driving under the influence. The rationale expressed by DPSIDC explains the AFSC disqualification was for failure to maintain mandatory AFSC qualification. The applicant could not return to his primary AFSC solely due to his conviction by a civilian court of a Category 2 offense, which is disqualifying. We find the disqualification via AF Form 2096 was executed in accordance within the prescribed regulation and no corrective action is warranted. 5. Through counsel, the applicant requests that he receive either his full separation pay, or retirement at E-7, the highest grade held. We note, the highest grade the applicant held was E- 6, technical sergeant. Upon separation the applicant was authorized half of separation pay based on his SPD code. Accordingly, he was paid a severance of $19,189.60, which included his separation pay, lump-sum sold leave and final earnings less appropriate deductions. The applicant through an unfortunate set of circumstances found himself without an AFSC. However, the circumstances were a direct result of his actions. Accordingly, other than the administrative correction we find no further relief is warranted. 6. 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 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 BCMR Docket Number BC-2011-03501 in Executive Session on 11 September 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A1. DD Form 149, dtd 12 Jan 11, w/atchs. Exhibit A2. DD Form 149, dtd 28 Aug 11, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dtd 23 Jan 12. Exhibit D. Letter, HQ AFOSI OL-E, dtd 23 Feb 12. Exhibit E. Letter, AFPC/DPSIDC, dtd 26 Mar 12, w/atchs. Exhibit F. Letter, AFPC/DPSOA, dtd 2 Apr 12, w/atchs. Exhibit G. Letter, AFPC/DPSOE, dtd 25 Apr 12. Exhibit H. Letter, SAF/MRBR, dtd 4 May 12. Exhibit I. Applicant’s Response, dtd 6 Jun and 12 Jul 12.