RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04048 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her Letter of Reprimand (LOR), dated 25 Feb 10, be removed from her records. 2. Her referral AF Form 911, Enlisted Performance Report (EPR) (MSgt thru CMSgt) rendered for the period 16 Apr 09 through 6 Apr 10, be voided and removed from her records. _________________________________________________________________ APPLICANT CONTENDS THAT: In a 13-page legal brief, the applicant’s counsel presents the following major contentions: 1. In 2009, she enrolled in an on-line Project Management course at Villanova University; she experienced computer problems when signing up for and taking the course. When she went to enroll for her next class, the Kunsan Air Base Education office informed her that she had received an “F” in the course. Believing this to be a mistake, she contacted the university and was informed that according to their records, she had not logged into the course with her student account. She told her daughter she was upset over the mistake. Her daughter was concerned that the stress over the failing grade would cause further harm to her health. (The applicant had undergone cancer treatment more than once). Her daughter decided to create a letter that appeared to be from Villanova University stating they found and corrected the mistake and that she had received an “A minus” in the course. Thinking the letter was from Villanova she took it to the education office as proof she successfully completed the course. 2. She was investigated for fraud and issued a LOR despite overwhelming evidence she had done nothing wrong. Her daughter admitted she wrote the letter; had someone else sign it unbeknownst to her; and provided a statement from the individual who assisted her in writing the letter. 3. She passed a polygraph test; provided other evidence that she had taken the course; believed she passed the course and did not know her daughter had written the letter; and did not intend to provide false information to the Air Force. Despite the evidence, her commander believed she provided a fake letter to the education office and allowed the LOR to remain firm. 4. Given the fact she had no knowledge of, or role in the creation of the letter, her good-faith belief in the letter’s authenticity at the time she submitted it to the education office; and the severe nature of the reprimand, the LOR is unjust. It is a violation of the requirement under AFI 36-2907, Unfavorable Information File (UIF) that “an LOR be based on reliable and substantiated information.” The LOR should be removed from her official personnel file and all military records. Similarly, it was improper for her additional rater to base negative comments on the unsubstantiated allegation that she knowingly provided a false letter. It is in violation of AFI 36-2406, Officer and Enlisted Evaluation System that “comments in a performance report be based on reliable information.” Her additional rater abused his discretion when he ignored all the evidence and made negative comments in her EPR. The comments were not based on reliable and substantiated information. Therefore, her EPR should also be removed from her official personnel files and all military records. In support of her request, the applicant provides a 13-page legal brief; copies of letters of support, emails, polygraph report and various other documents associated with her application. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 2 Sep 09, a Commander-Directed Investigation (CDI) was conducted and the results substantiated that the applicant knowingly provided false information in violation of the Uniform Code of Military Justice (UCMJ) to the Maxwell Air Force Base Education Office regarding her grade in a Villanova University course in an effort to avoid having to repay tuition assistance (TA) funds to the Air Force. On 27 Jan 10, the Air University Staff Judge Advocate (AU/JA) reviewed the Investigating Officer’s (IOs) Report of Investigation (ROI) and found it legally sufficient and recommended the commander concur with the IO’s finding. On 25 Feb 10, the applicant’s commander determined that the preponderance of the evidence in the CDI showed that the applicant not only made false statements, but also forged the letter from Villanova University or enlisted others to participate in order to avoid repayment of the TA the Air Force expended on her behalf towards a Villanova University online course. For this misconduct, the applicant received a LOR for knowingly providing false information to the education office. She acknowledged receipt of the LOR. On 8 Mar 10, the applicant provided a rebuttal statement in response to the LOR. There is no evidence the commander acknowledged receipt of her rebuttal or of his final decision to maintain the LOR. The following is a resume of her EPR history as reflected in the Military Personnel Data System (MilPDS): Close-Out Date Overall Performance Assessment 10 Dec 10 5 6 Apr 10 4 15 Apr 09 5 15 Apr 08 5 9 Oct 07 5 On 1 Mar 11, the applicant retired from the Air Force in the grade of CMSgt after serving 30 years and 13 days of active duty service. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove the contested LOR. DPSIM states that they cannot speak to whether or not the commander’s actions were just or not; at most they can only discuss if proper procedures were followed in the administration of the action. After careful review, they determined the evidence presents only a minor discrepancy which had no bearing on the administrative action itself. The evidence reflects a potential administrative oversight on the applicant’s part. Specifically, the delay in response to the LOR she received on 25 Feb 10, but did not respond to until 8 Mar 10. In Accordance With (IAW) AFI 36-2907, the applicant had three duty days to submit rebuttal documents for consideration by the initiator. The person who initiated the Record of Individual Counseling (RIC), Letter of Counseling (LOC), Letter of Admonition (LOA), or LOR had three duty days to advise the applicant of their final decision regarding any comments submitted by the applicant. There is no evidence the applicant was granted an extension by the commander. However, the discrepancy does not invalidate the commander’s actions/authority to administer the LOR. The complete DPSIM evaluation is at Exhibit E. AFPC/DPSID reviewed the applicant’s request and determined that no action is required by their office. The applicant’s referral EPR, with a close-out date of 6 Apr 10, was never made a matter of record; therefore, there is no report to contend. In addition, the EPR provided by the applicant is not a completed copy and cannot be accepted for file. The complete DPSID evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 15 Oct 13, for review and comment within 30 days (Exhibit G). As of this date, this office has not received a 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 careful 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 its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Persuasive evidence has not been provided which would lead us to believe that the administrative actions taken by her commander were beyond his scope of authority, that he abused his discretionary authority in taking those actions, or that the actions taken were precipitated by anything other than the applicant's own conduct. We do not find her assertions, in and by themselves, sufficiently persuasive in this matter. Additionally, as pointed out by DPSID, the referral EPR ending 6 April 10 was never made a matter of record, as such, this portion of her request is moot. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 Docket Number BC-2012-04048 in Executive Session on 9 Jan 14, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 Dec 12, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Commander Directed Investigation (removed). Exhibit D. Letter, AU/JA, dated 27 Jan 10. Exhibit E. Letter, AFPC/DPSIM, Letter, dated 11 Sep 13 Exhibit F. Letter, AFPC/DPSID, dated 19 Sep 13. Exhibit G. Letter, SAF/MRBR, dated 15 Oct 13, w/atchs.