RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00316 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Article 15 imposed on 20 Sep 10 be removed from his records. 2. The Officer Performance Report (OPR), rendered for the period 17 Oct 09 through 16 Oct 10, be removed from his records. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His due process rights were violated. His commander refused to hear his case by personal appearance and failed to delegate the authority to his subordinate commander as required by the governing instruction. 2. The contested report was not signed by his official rater. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving on active duty in the grade of first lieutenant (O-2). On 7 Sep 10, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in his duties by failing to refrain from bringing his personal cellular phone into the Launch Control Center (LCC) of Missile Alert Facility Fox-1, in violation of Article 92 of the UCMJ. His punishment consisted forfeiture of $500.00 of pay per month for two months and a reprimand. On 10 Sep 10, after consulting with legal counsel, the applicant acknowledged receipt of the action, accepting Article 15 proceedings by waiving his right to trial by court-martial, elected to submit a statement, and requested a personal appearance. On 20 Sep 10, the applicant’s commander determined the applicant committed the alleged offense, imposed the proposed punishment, and notified the applicant of his intent to file the NJP action in his Officer Selection Record (OSR). On 24 Sep 10, the applicant appealed the decision. His commander denied his appeal on 2 Oct 10, and the appellate authority denied the appeal on 12 Oct 10. The applicant received a referral OPR for the period 17 Oct 09 through 16 Oct 10 for comments indicating that he violated Article 92 of the UCMJ by bringing his cell phone into the LCC. The applicant’s OPR profile as is as follows: PERIOD ENDING OVERALL EVALUATION *16 Oct 10 Does Not Meet Standards (MS) 16 Oct 11 MS 1 May 12 MS 3 Sep 12 MS 3 Sep 13 MS On 1 Jul 12, the applicant requested the NJP and Unfavorable Information File (UIF) be removed from his OSR. On 10 Oct 12, his request to remove the NJP from his OSR was approved; however, no action was required for the UIF as it had expired. 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 Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to remove the NJP from the applicant’s records, indicating there is no evidence of an error or injustice. The applicant alleges he was not afforded the opportunity for a personal appearance and his commander failed to delegate the request to his subordinate commander. On 11 Jul 10, the imposing authority designated the applicant’s wing commander as the authority for hearing and receiving matters concerning the proposed NJP. The commander further directed the wing commander forward all pertinent documentation to him for review. The applicant appeared before the wing commander. After hearing the applicant’s presentation, the wing commander recommended to the imposing authority that he find the applicant committed the alleged offense and impose punishment consisting forfeiture of pay and a reprimand. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request to void the contested performance report indicating there is no evidence of an error or injustice. The applicant has not provided compelling evidence to show that the report was unjust or wrong. He did file an appeal with the Evaluations Report Appeals Board (ERAB); however, the request was returned due to insufficient documentation. He filed a subsequent appeal which was also returned due to insufficient supporting documentation. The applicant provided a memorandum for record (MFR) from the individual who he claims is the actual rater. However, the authenticity of the MFR cannot be verified as it was not signed with a wet signature. Without an explanation or clarification from the rater who wrote the report, there is no validity or merit to this particular claim as a personal opinion from a member outside the rating chain is not germane to this appeal. Furthermore, a review of the Military Personnel Data System (MILPDS) confirmed that the rater who signed the report was the correct rater. Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record. Moreover, it is considered to represent the rating chain's best judgment at the time it is rendered. In challenging the validity of an evaluation report, 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 statements from the original evaluators during the contested period and without these statements, AFPC/DPSID can only conclude that the report in question is accurate as written. There is no evidence showing the report was not accomplished in accordance with all applicable Air Force policies and procedures. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided a copy of the supporting statement from his actual rater with a wet signature. He was his supervisor and was listed as his reporting official for more than 120 days. He was in the process of changing squadrons and it was decided that the rater reflected on the contested OPR would be listed as his supervisor. However, she was not the applicant’s reporting official or commander at time the performance report closed out. The change was done to generate less work for the squadron and to avoid generating another OPR. The 90th Missile Wing Inspector General (IG) can verify the authenticity of his claim. As for his Article 15, he was not aware of a memorandum being sent to the imposing authority from the wing commander. His Defense Counsel advised him that that he would be afforded and opportunity to plead his case directly to the imposing authority. A fair outcome was not possible as the wing commander recommends the proceedings. The applicant’s complete response, with attachment, is at Exhibit F. ________________________________________________________________ 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 regarding the applicant’s request that his Article 15 be removed from his records. We took careful notice of the applicant's complete submission in judging the merits of the case; to include his rebuttal response; however, we agree with the opinion and recommendation of the AFLOA/JAJM and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice with respect to his NJP. While the applicant believes he was denied his due process rights by not being able to present his appeal to the imposing authority, other than argument and conjecture, he has presented no evidence whatsoever that the decision of the imposing authority to delegate the responsibility to hear the applicant’s appeal to the wing commander was improper, represented an abuse of discretionary authority, or was arbitrary or capricious. Therefore, we find no basis to remove the contested NJP action. As for the applicant’s contention that the contested officer performance report (OPR) was signed by the wrong rater and should therefore be removed, we are not convinced the OPR was inappropriately rendered or is somehow inaccurate or unfair. While we note the applicant has provided a statement from a fellow officer indicating that he should have been his rater during the matter under review, without support of clarification from the rating chain of record, we do not find this statement, in and by itself, sufficient to conclude the OPR should be removed. Further, the applicant’s records contain no documentation that would corroborate the claim that this officer was or should have been the rater of record. In fact, the applicant’s record contains a statement from this officer in support of his appeal to the NJP action that indicates that he was his trainer. Therefore, given the inconsistency between this statement and the documentation in the applicant’s record, we do not find the statement provided by the applicant constitutes sufficient evidence of an error or injustice with respect to the contested OPR. Therefore we do not find a basis to recommend granting the relief sought. ________________________________________________________________ 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-2013-00316 in Executive Sessions on 12 Nov 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jan 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 22 May 13, w/atchs. Exhibit D. Letter, AFPC/DPSID, dated 2 Jul 13. Exhibit E. Letter, SAF/MRBR, dated 24 Jul 13. Exhibit F. Letter, Applicant, dated 15 Aug 13, w/atch. 1 2