RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05019 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: The Air Force (AF) Form 707, Officer Performance Report (OPR), rendered for the period 19 May 08 through 18 May 09, be declared void and removed from his records. ________________________________________________________________ APPLICANT CONTENDS THAT: The incident that prompted the referral report was dismissed in civil court. The OPR was unjust and did not accurately reflect his performance during the period in question. This referral report reflects poorly on his outstanding service before and after the incident. In support of his request, the applicant provides an expanded statement and a copy of a character reference. 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 major (0-4). The contested OPR was rendered upon the applicant for the period 19 May 08 through 18 May 09. The applicant’s OPR profile as major is as follows: PERIOD ENDING OVERALL EVALUATION 18 May 08 Meets Standard (MS) *18 May 09 Does Not MS 29 Jun 10 MS 19 Feb 11 MS 19 Feb 12 MS *Referral Report The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibit C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial indicating there is no evidence of an error or injustice. The applicant received the contested referral report based on a referral comment related to his receipt of a letter of reprimand (LOR) for being arrested for sleeping in a running vehicle in front of an open convenience establishment with an elevated blood alcohol content. The applicant did file an appeal with the Evaluations Report Appeals Board (ERAB). However, the ERAB was not persuaded the contested report was inaccurate or unjust and denied his request. In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or the Uniform Code of Military Justice (UCMJ), or when adverse actions such as Article 15, Letters of Reprimand, Admonishment, or Counseling, or placement on the Control Roster have been taken. The applicant’s rating chain chose to comment on the misconduct, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. In his rebuttal, the applicant took responsibility for his actions. The additional rater considered the applicant's rebuttal comments and chose to maintain the referral report. Furthermore, the applicant has provided no evidence to show that the referral comment on the OPR was in any way inaccurate or unjust; and the inclusion of the comment on the referral OPR was appropriate and within the evaluators' authority. While the applicant alleges the contested OPR should be removed from his records because the civil court dismissed the case, he has not provided any evidence showing the civil case was dismissed. Furthermore, a court dismissal of the civil charges is irrelevant since the comment in the OPR only documented the fact that applicant was "arrested," not that he was charged or found guilty. Documenting his arrest does not invalidate the contested report. As for the supporting statement provided by the applicant, while individuals outside of the rating chain are entitled to their opinion of the applicant's duty performance and the events occurring around the time the OPR was rendered, they are not in a better position to evaluate the applicant’s duty performance than those who were assigned that responsibility. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record, and is a representation of the rating chain's best judgment at the time it is rendered. To effectively challenge an evaluation, it is necessary to hear from all the members of the rating chain-not only for support but, also for clarification/explanation. The applicant has not provided any evidence of support from his rating chain. Without such documentation, the appropriate conclusion is that the contested OPR is accurate as written, and was accomplished in direct accordance with all applicable Air Force policies and procedures. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/JA recommends denial indicating there is no evidence of an error or injustice. The applicant was not acquitted of the civil charges. A determination was not made by the court on the merits as to whether the applicant committed the offenses he was charged. Rather, charges were dismissed on a procedural ground that did not reach the applicant's guilt or innocence. Furthermore, as noted by AFPC/DPSID, the applicant admitted his wrongdoing and accepted responsibility for his actions in his response to the referral report. A complete copy of the AFPC/JA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 19 Apr 13, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an 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 the applicant has not been the victim of an error or injustice. The applicant's contentions are duly noted; however, we are not persuaded by the evidence provided to recommend removal of the performance report in question. 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2012-05019 in Executive Session on 30 Jul 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPRC/DPSID, dated 5 Apr 13. Exhibit D. Letter, AFPC/JA, dated 16 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 19 Apr 13.