ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04923 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. The AF Form 3070A, Record of Nonjudicial Punishment Proceedings, dated 12 Jun 10, be declared void and removed from her records 2. The referral Enlisted Performance Report (EPR) for the period ending 8 Sep 10, be declared void and removed from her records. ________________________________________________________________ _ STATEMENT OF FACTS: On 28 Aug 12, the Board considered and denied the applicant’s request, concluding the evidence presented was not sufficient to conclude the applicant was deprived rights to which she was entitled during the non-judicial punishment (NJP) process or that her commander’s determination and actions were arbitrary, capricious, or not based on a preponderance of the evidence. As for the applicant’s argument that her referral EPR should be removed from her records, the Board was not convinced that she was denied due process when it was not re-referred to her when certain changes were made to the narrative, nor was the Board convinced the report contained erroneous information regarding the applicant’s fitness assessment (FA) failure. For an accounting of the facts and circumstances surrounding the applicant’s request, and the rationale for the earlier decision by the Board, see the Record of Proceedings, with Exhibits, at Exhibit H. Subsequent to the Board’s initial deliberation of the applicant’s case, it was discovered that Counsel had submitted a comprehensive rebuttal to the advisory opinions rendered in the applicant’s case that was not considered by the Board. In view of this, and to preclude the possibility of an injustice, the applicant’s initial case, including the rebuttal, was referred to the Board for reconsideration. By a letter dated 24 May 12, Counsel argues that no evidence was provided showing beyond a reasonable doubt that the applicant sent the harassing emails which formed part of the basis for the NJP. The applicant did not state that a fellow airman claimed he saw her send the emails, she stated her ex-boyfriend thought she sent the emails. Also, the Report of Investigation from Security Forces does not conclusively state the applicant sent the emails. Furthermore, she provided signed sworn statements from her parents indicating they sent the emails. The applicant has shown the comments on her EPR with respect to her fitness assessment (FA) failure are incorrect and that the EPR was referred more than once. There were two different referral letters given to the applicant by her rater. Both letters were dated 8 Oct 10. The first letter referred the EPR for comments in section III, Performance Assessment, block 3. Fitness and the EPR was not signed. The second letter referred the EPR for the comments in section III, Performance Assessment, block 2. Standards, Conduct, Character & Military Bearing and block 3. Fitness. The applicant failed her 8 Oct 10 fitness assessment and received the second referral letter on the same date. The second letter is not correct because it simply could not have been generated that quickly after she failed the fitness test. The applicant was denied the opportunity to comment on the second referral letter. By denying the applicant the opportunity to comment on the second referral was improper and renders the EPR unjust. As for the comments related to her fitness assessment in the contested referral EPR, the objectionable comments indicated the applicant received a does not meet standards rating on her fitness assessment (FA) because she failed to receive a passing score; however, said comments relate to a FA the applicant participated in after the close-out of the contested referral EPR. Additionally, AFPC/DPSIM confirmed the applicant was current when her EPR closed out; therefore, because these comments relate to an FA failure that took place after the close-out of the referral EPR and AFPC/DPSIM has confirmed that she was current with respect to her Fitness testing as of the close-out of this report, there is no basis for a does not meet standards rating for fitness on the contested referral EPR. Counsel’s complete submission is at Exhibit I. Under the provisions of AFI 10-248, Fitness Program, 24 May 05, service members who receive an excellent/good score must retest within 12 months, are considered non-current on the 1st day of the 13th month after their last fitness assessment (if the service member tested between 1 through 31 Jan, the service member is due to test the following Jan and becomes non-current on 1 Feb.) Because the applicant’s last passing FA score was on 15 Dec 09, under the policy described above, she would not be required to participate in another FA until 1 Jan 11. However, with the release of AFI 10-248, Fitness Program, AFGM 1, on 4 Jan 10, the rules for currency changed and military members, such as the applicant were required to participate in FAs semi-annually, instead of annually. Because the applicant’s last FA was on 15 Dec 09 and she received an overall rating of “Good” she became non-current on 1 Ju1 10, which was before the close-out of the contested EPR. Therefore, she was non-current as of the date of the close-out of the contested EPR. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request pertaining to her Article 15 punishment. We have thoroughly reviewed the evidence of record to include the applicant’s original request along with Counsel’s rebuttal response, but find these arguments insufficient to override the Board’s previous decision. The applicant received an Article 15 for violating various articles under the UMCJ. She contends she is innocent and there was no evidence to show beyond a reasonable doubt that she sent the emails in question. The applicant accepted the nonjudicial punishment (NJP) and waived her right to trial by court-marital. By waiving trial by court-martial she acknowledged that her commander would decide whether and how much punishment was appropriate for the offenses committed. The applicant’s commander was in the best position to carefully weigh all evidence, make informed findings of fact, and arrive at a suitable punishment. In addition, the commander’s decision and subsequent punishment were within the discretionary limits of his authority. Furthermore, there was no evidence the applicant was not afforded all her rights or that her commander acted arbitrarily or capriciously, or abused his discretionary authority. After a thorough review of the applicant’s complete submission, the evidence of record and the rebuttal, we find the evidence insufficient to override the basis of the Board’s previous decision to deny removal of the Article 15. Other than the applicant’s and Counsel’s assertions, no documentation has been provided showing the applicant’s commander was unable to evaluate the circumstances of the situation and render fair and just punishment, that he abused his discretionary authority, or that the applicant was not afforded her rights during the Article 15 process. Therefore, based on the above, we find no basis to recommend removal of the Article 15 in question. 2. As for Counsel’s argument that the contested enlisted performance report (EPR) was referred multiple times to the applicant, we note this issue was adequately addressed in the original consideration of this case. Accordingly, we are not convinced by the recent evidence provided that the applicant was the victim of an error or an injustice. 3. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the referral comments on the contested referral enlisted performance report (EPR) related to the applicant’s fitness assessment (FA) failure. Counsel asserts the comments on the contested EPR relating to the applicant’s 8 Oct 10 FA failure were improper as they described events that took place after the close-out of the contested EPR. After a thorough review of the evidence of record and the applicant’s complete submission, we agree and believe some measure of relief is warranted. However, in spite of this, we do not find there is a basis to alter the Does Not Meet standards rating for fitness. In this respect, we note the applicant was noncurrent on her FA at the close-out of the contested EPR in accordance with provisions of AFI 10-248, AFGM 1, dated 4 Jan 10, which, as of 1 Jul 10, prescribed semi-annual fitness testing for members, such as the applicant, whose most recent fitness result was a satisfactory or lower. Effective 1 Jul 10 airmen were required to test under the new semi-annual requirement; therefore, in view of the fact that her previous FA took place on 15 Dec 09, the applicant became non-current on 1 Jul 10, well before the 8 Sep 10 close-out. Therefore, while the comment describing the applicant’s fitness failure inappropriately described events that took place after the close-out of the contested EPR, the fact of the matter is the applicant was non-current in fitness as of the close-out of the contested EPR and, therefore, a Does Not Meet standards rating was appropriate. Therefore, we believe the objectionable comment should be revised to reflect the true circumstances of the applicant’s situation at the close out of the contested EPR—she was non-current in her FA. Therefore, we recommend the applicant’s records be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that Block 3, Fitness, of the AF Form 910, Enlisted Performance Report (AB thru TSGT), rendered for the period 9 September 2009 through 8 September 2010, be corrected to reflect, “Member failed to maintain currency,” instead of “Mbr failed to maintain Physical Fitness stds.” _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04923 in Executive Session on 29 May 14, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04923 was considered: Exhibit H. Record of Proceedings, dated 31 Mar 11, w/Exhibits. Exhibit I. Letter, Counsel, dated 24 May 12.